702.03 Manner of Trial
Because the Board is an administrative tribunal, its rules and procedures differ in some respects from those prevailing in the federal district courts. [ Note 1.] See TBMP § 102.03 regarding Board proceedings in general and TBMP § 502.01 regarding motions that may be filed at the Board. For example, in lieu of live testimony, proceedings before the Board are conducted in writing, and the Board's actions in a particular case are based on the written record therein. [ Note 2.] The Board does not preside at the taking of testimony. Rather, all testimony is taken out of the presence of the Board, by affidavit or declaration, or on oral examination or written questions, and the affidavits, declarations and written deposition transcripts, together with any exhibits thereto, are then submitted to the Board. [ Note 3.]
Depositions may be noticed for any reasonable place in the United States. [ Note 4.] As a result, parties do not have to travel to the offices of the Board, or to the geographic area surrounding the Board's offices, to take their testimony. Plaintiffs also have the option of presenting witness testimony in affidavit or declaration form subject to the right of any adverse party to elect to take and bear the expense of oral cross examination of that witness. [ Note 5.] See TBMP § 703.01(h). Depositions and oral cross-examinations of deponents and affiants must be noticed for a reasonable place. [ Note 6.] Depositions and oral cross-examinations may be conducted by telephone or videoconference if the parties so agree. [ Note 7.] A party to a proceeding before the Board need never come to the offices of the Board at all, unless the party wishes to argue its case at oral hearing at the offices of the Board, or unless otherwise ordered by the Board.
An oral hearing is held only if requested by a party to the proceeding. [ Note 8.] See TBMP § 802.02.
Submissions made during the course of an inter partes proceeding are stored in electronic form and are available for viewing on the Board home page of the USPTO website via TTABVUE (http://ttabvue.uspto.gov ). Filings in Board proceedings are made electronically via ESTTA, and in the rare circumstances that filing in paper form is permitted under the rules, such paper submissions are scanned into the electronic record. The electronic record constitutes the official record of the proceeding. See TBMP § 120. No document, exhibit, etc., whether submitted electronically or as paper, will be considered as evidence in the case unless it has been introduced in evidence in accordance with the applicable rules, see TBMP § 706, [ Note 9.], or the parties stipulate or otherwise treat the evidence as being of record, see TBMP § 702.02.
For a further discussion regarding viewing and obtaining Board records, see TBMP § 121.
If the parties to a proceeding desire to obtain a final resolution of a proceeding prior to the scheduled trial period, they may consider Accelerated Case Resolution ("ACR"). For information on ACR, see TBMP § 528.05(a)(2), TBMP § 702.04 and TBMP § 705.
NOTES:
1. See Yamaha International Corp. v. Hoshino Gakki Co., 840 F.2d 1572, 6 USPQ2d 1001, 1004 (Fed. Cir. 1988); La Maur, Inc. v. Bagwells Enterprises, Inc., 193 USPQ 234, 235 (Comm'r 1976). For a general discussion of inter partes proceedings before the Board, see B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. ___, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015).
2. 37 C.F.R. § 2.191. B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. ___, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015).
3. See B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. ___, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); Hewlett-Packard Co. v. Healthcare Personnel Inc., 21 USPQ2d 1552, 1553 (TTAB 1991); La Maur, Inc. v. Bagwells Enterprises, Inc., 193 USPQ 234, 235 (Comm'r 1976).
4. See 37 C.F.R. § 2.123(a)(1) and 37 C.F.R. § 2.123(c).
5. 37 C.F.R. § 2.123(a)(1). See Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1166 (TTAB 2017) (party seeking oral cross-examination of affiant or declarant bears cost of its own travel and attorney expenses, the court reporter, and, if necessary, the venue).
6. Cf. USPS v. RPost Communication Ltd., 124 USPQ2d 1045, 1047-48 (TTAB 2017) (notice of election of oral cross-examination requiring declarants to travel from Washington DC, where they live and work, to Santa Monica CA quashed because not noticed for reasonable place).
7. See USPS v. RPost Communication Ltd., 124 USPQ2d 1045, 1048 (TTAB 2017) (notice of election of oral cross-examination of declarants quashed because not noticed for reasonable place, but applicant may accept opposer’s offer to make witnesses available for oral cross examination by videoconference or telephone, thus alleviating some concern about travel and attorney expenses),
8. See 37 C.F.R. § 2.129(a).
9. See 37 C.F.R. § 2.123(k).