518 Motion for Reconsideration of Decision on Motion

37 C.F.R. § 2.127(b) Any request for reconsideration or modification of an order or decision issued on a motion must be filed within one month from the date thereof. A brief in response must be filed within twenty days from the date of the service of the request.

A request for reconsideration or modification of an order or decision issued on a motion must be filed within one month from the date of the order or decision. [ Note 1.] Unless the Director, upon petition, waives the time requirement of 37 C.F.R. § 2.127(b), the Board need not consider a request for reconsideration or modification filed more than one month from the date of the order or decision complained of. [ Note 2.] Nor does the rule contemplate a second request for reconsideration of the same basic issue. [ Note 3.] However, the Board may, on its own initiative, reconsider and modify one of its orders or decisions if it finds error therein, and the Board may also, in its discretion, consider an untimely request for reconsideration or modification. [ Note 4.]

Any brief in response to a request for reconsideration or modification of an order or decision issued on a motion must be filed within 20 days from the date of service of the request. [ Note 5.]

When a party upon which a motion has been served fails to file a brief in response, and the Board grants the motion as conceded pursuant to 37 C.F.R. § 2.127(a), the non-responding party cannot use a request for reconsideration as a second opportunity to file a brief in opposition to the motion. [ Note 6.]

Generally, the premise underlying a motion for reconsideration, modification or clarification under 37 C.F.R. § 2.127(b) is that, based on the facts before it and the prevailing authorities, the Board erred in reaching the order or decision it issued. Such a motion may not be used to introduce additional evidence, nor should it be devoted simply to a reargument of the points presented in a brief on the original motion. Rather, the motion should be limited to a demonstration that based on the facts before it and the applicable law, the Board’s ruling is in error and requires appropriate change. [ Note 7.] Cf. TBMP § 543 (Motion for Reconsideration of Final Decision).

An interlocutory motion, request, or other matter that is not actually or potentially dispositive of a proceeding, may be acted upon by a single Board judge, attorney, or paralegal to whom authority so to act has been delegated, or by ESTTA. [ Note 8.] See also TBMP § 502.04. When one or more parties is dissatisfied with the Board action, they may seek review thereof by requesting reconsideration under 37 C.F.R. § 2.127(b), and/or by filing a petition to the Director for review of the decision under 37 C.F.R. § 2.146(e)(2). See TBMP § 905. A request that the action of a single Board judge, or attorney be reviewed by one or more other judges of the Board is improper and will be denied. However, at final hearing, the Board panel to which the case is assigned for decision may review an interlocutory ruling and reverse it, if appropriate. [ Note 9.]

NOTES:

1. 37 C.F.R. § 2.127(b). SeeGuess? IP Holder LP v. Knowluxe LLC, 116 USPQ2d 2018, 2019 (TTAB 2015); Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Manufacturing Co., 55 USPQ2d 1848, 1854 (TTAB 2000).

2. See Avedis Zildjian Co. v. D. H. Baldwin Co., 181 USPQ 736, 736 (Comm’r 1974).

3. See Giant Food, Inc. v. Standard Terry Mills, Inc., 231 USPQ 626, 631 n.11 (TTAB 1986); Avedis Zildjian Co. v. D.G. Baldwin Co., 181 USPQ 736, 736 (Comm’r 1974).

4. See Avedis Zildjian Co. v. D. H. Baldwin Co., 181 USPQ 736, 736 (Comm’r 1974).

5. See 37 C.F.R. § 2.127(b).

6. See Joy Manufacturing Co. v. Robbins Co., 181 USPQ 408, 409 (TTAB 1974). Cf. General Tire & Rubber Co. v. Gendelman Rigging & Trucking Inc., 189 USPQ 425, 427 (TTAB 1975).

7. See Guess? IP Holder LP v. Knowluxe LLC, 116 USPQ2d 2018, 2019-20 (TTAB 2015) (reconsideration denied because there is no requirement that Board repeat or address irrelevant arguments in entertaining a motion); Vignette Corp. v. Marino, 77 USPQ2d 1408, 1411 (TTAB 2005) (reconsideration denied because Board did not err in considering disputed evidence).

8. See 37 C.F.R. § 2.127(c).

9. See, e.g., AS Holdings, Inc. v. H & C Milcor, Inc., 107 USPQ2d 1829, 1832 (TTAB 2013) (reviewing interlocutory ruling striking certain testimonial exhibits, but denying reversal of decision); Harley-Davidson Motor Co. v. Pierce Foods Corp., 231 USPQ 857, 859 n.13 (TTAB 1986) (although an interlocutory decision had excluded certain documentary evidence, opposer did not object to its admission by applicant at trial and the Board deemed the evidence as stipulated to by the parties).