541 Motion to Change Oral Hearing Date; For Additional Time
541.01 Motion to Change Oral Hearing Date
If a party to a proceeding before the Board desires to present oral argument (i.e., oral hearing) at final hearing, including a case decided under Accelerated Case Resolution (ACR), see TBMP § 528.05(a)(2), the party must file a request therefor, by separate submission, not later than 10 days after the due date for the filing of the last reply brief in the proceeding. See TBMP § 802. When a request for an oral hearing is filed, the Board will issue an order acknowledging receipt of the request and allowing time for submission of several potential dates for the hearing, agreed upon by both parties. The response also should indicate whether either party will attend the oral hearing by video conference. The Board will then set the date and time for the hearing, and send each party written notice thereof. [ Note 1.] Ordinarily, oral hearings are scheduled on Tuesdays, Wednesdays and Thursdays between 10:00 a.m. and 3:00 p.m. (Eastern Time). The Board normally expects the parties, or their attorneys or other authorized representatives, to confer with each other to determine at least three convenient dates and times for the hearing within the foregoing parameters, and to provide that information to the Board with the request for oral hearing.
The date or time of an oral hearing may be reset, so far as is convenient and proper, to meet the wishes of the parties and their attorneys or other authorized representatives if there is a reasonable basis for the request. When parties agree to the resetting of an oral hearing, they should determine a new date and time convenient to every party and then contact the Board's Hearings and Decisions Specialist by phone, well prior to the scheduled hearing date, to request that the hearing be reset for the new date and time. The parties should also file a written stipulation or consented motion confirming their agreement. If parties agree to the resetting of an oral hearing due to settlement negotiations, they should request that proceedings, including the time for oral hearing, be suspended pending completion of the negotiations. If agreement cannot be reached, the party that wishes to have the hearing reset should file a motion therefor. Absent compelling circumstances, a hearing date will not be changed if the request for rescheduling is made within two weeks of the scheduled hearing date unless both parties agree to the change. [ Note 2.]
When one or more of the parties does not consent to the resetting of an oral hearing, the party that wishes to have the hearing reset must file a motion therefor, showing good cause. [ Note 3.] See TBMP § 509. The motion should be filed well in advance of the scheduled hearing date. Further, to ensure that the motion is determined (by telephone conference call, if necessary) prior to the scheduled hearing date, the moving party should file its motion through ESTTA, and telephone the Board’s Hearings and Decisions Specialist. See TBMP § 502.06(a). An unconsented motion to reset an oral hearing should not be filed merely because another date would be more convenient. The process of scheduling an oral hearing is a time-consuming task for the Board. Because of the inherent difficulties in arranging a date for an oral hearing, an unconsented motion to reset the hearing should be filed only for the most compelling reasons. Examples thereof include the onset of serious illness, nonelective surgery, death of a family member and similar unanticipated or unavoidable events. [ Note 4.]
The Board may deny a request to reset a hearing date for lack of good cause or if multiple requests, including stipulations and consented requests, for rescheduling have been filed. [ Note 5.]
For further information concerning oral hearings, see TBMP § 802.
NOTES:
1. See 37 C.F.R. § 2.129(a).
2. See 37 C.F.R. § 2.129(b).
3. See Fed. R. Civ. P. 6(b).
4. See, e.g., In re Taylor & Francis [Publishers] Inc., 55 USPQ2d 1213, 1214 n.2 (TTAB 2000) (applicant’s request to reschedule oral hearing three hours before hearing due to "a sudden conflict of time" denied).
541.02 Motion For Additional Time For Oral Argument
Ordinarily, each party in a Board inter partes proceeding is allowed 30 minutes for its oral arguments. If it so desires, the plaintiff may reserve part of its 30 minutes for rebuttal. [ Note 1.] See TBMP § 802.05. If, because of the novelty or complexity of the issues, the extent of the record, the presence of a counterclaim involving different issues than those involved in the original proceeding, etc., a party feels that it needs more than 30 minutes for oral argument, it may file a request with the Board for additional time. [ Note 2.] Parties will note, however, that such motions are disfavored.
If the request is granted, each party will be allowed the same amount of time for oral argument. In addition, the panel hearing the oral argument may, during the course thereof, sua sponte extend the parties’ time to present their arguments.
Ideally, a request for additional time should be included with the request for oral hearing. If a party determines after that time that it needs additional time for oral argument, the party should immediately call the Board and notify the Board that it intends to file a request for additional time. This early notification is necessary to ensure that there will be time in the Board’s hearing schedule for an extended oral hearing, and also to ensure that the request will be considered and determined prior to the date of the oral hearing. Cf. TBMP § 541.01.
NOTES:
1. See 37 C.F.R. § 2.129(a).
2. See 37 C.F.R. § 2.129(a); U.S. Navy v. United States Manufacturing Co., 2 USPQ2d 1254, 1225 (TTAB 1987) (additional time for arguments allowed in view of voluminous record). Cf. 37 C.F.R. § 2.128(b).