707.02(b)(1) On Ground of Untimeliness
When a notice of reliance under any of the aforementioned rules is filed after the close of the offering party's testimony period, an adverse party may file a motion to strike the notice of reliance (and, thus, the evidence submitted thereunder), in its entirety, as untimely. [ Note 1.] Alternatively, an adverse party may raise this ground for objection in its brief on the case or in an appendix or separate statement of objections attached to the brief. [ Note 2.]
NOTES:
1. See, e.g., Maids to Order of Ohio Inc. v. Maid-to-Order Inc., 78 USPQ2d 1899, 1902 (TTAB 2006) (motion to strike supplemental notice of reliance as having been filed outside testimony period granted); Jean Patou Inc. v. Theon Inc., 18 USPQ2d 1072, 1075 (TTAB 1990) (motion to strike untimely supplemental notice of reliance to admit current status and title copy of registration in place of timely but older status and title copy granted); May Department Stores Co. v. Prince, 200 USPQ 803, 805 n.1 (TTAB 1978) (motion to strike untimely notice of reliance on interrogatory answers and certified copies of corporate records filed with the state granted).
2. See, e.g., Questor Corp. v. Dan Robbins & Associates, Inc., 199 USPQ 358, 361 n.3 (TTAB 1978), aff' d, 599 F.2d 1009, 202 USPQ 100 (CCPA 1979); Miss Nude Florida, Inc. v. Drost, 193 USPQ 729, 731 (TTAB 1976) (respondent's objection to untimely notice of reliance raised for the first time in its brief was not waived), pet. to Comm'r denied, 198 USPQ 485 (Comm'r 1977). Cf. Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (where opposer's testimony deposition was taken two days prior to opening of opposer's testimony period, and applicant first raised an untimeliness objection in its brief on the case, objection held waived, since the premature taking of the deposition could have been corrected on seasonable objection).