534.04 Motion Under Fed. R. Civ. P. 41(b) or Fed. R. Civ. P. 50(a) Not Available
Trial testimony, in Board inter partes proceedings, is taken out of the presence of the Board, and it is the policy of the Board not to read trial testimony, or examine other trial evidence, prior to its final deliberations in the proceeding. See TBMP § 502.01.
Accordingly, the only means available for testing the sufficiency of trial evidence in an inter partes proceeding before the Board are the motions described in 37 C.F.R. § 2.132(a) and 37 C.F.R. § 2.132(b) TBMP §534.02. [ Note 1.] See TBMP §534.02 and TBMP § 534.03. The motion under Fed. R. Civ. P. 41(b) for involuntary dismissal, and the motion under Fed. R. Civ. P. 50(a) for judgment as a matter of law during and following jury trials (also referred to as a "directed verdict"), are not available in Board proceedings. See TBMP § 502.01. [ Note 2.]
NOTES:
1. Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1654 (TTAB 2007) (motion for involuntary dismissal under 37 C.F.R. § 2.132(a) denied; six days’ notice reasonable for testimony deposition that took place during opposer’s testimony period).
2. See Kasco Corp. v. Southern Saw Service, Inc., 27 USPQ2d 1501, 1504 n.2 (TTAB 1993) (Fed. R. Civ. P. 50(a) motion unavailable); No Nonsense Fashions, Inc. v. Consolidated Foods Corp., 226 USPQ 502, 506 n.9 (TTAB 1985) (Fed. R. Civ. P. 41(b) motion unavailable).