509    Motion to Extend Time; Motion to Reopen Time

Fed. R. Civ. P. 6(b) Extending Time.

  • (1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time:
    • (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
    • (B) on motion made after the time has expired if the party failed to act because of excusable neglect.
  • (2) Exceptions. A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b), except as those rules allow.

37 C.F.R. § 2.120(a)  Discovery.

  • (a) In general.
    • (1) … The Board will specify the deadline for a discovery conference, the opening and closing dates for the taking of discovery and the deadlines within the discovery period for making initial disclosures and expert disclosure. The trial order setting these deadlines and dates will be included within the notice of institution of the proceeding.
    • (2)
      • (i) The discovery conference shall occur no later than the opening of the discovery period, …. The discovery period will be set for a period of 180 days.
      • (ii) Initial disclosures must be made no later than thirty days after the opening of the discovery period.
      • (iii) Disclosure of expert testimony must occur in the manner and sequence provided in Rule 26(a)(2) of the Federal Rules of Civil Procedure, unless alternate directions have been provided by the Board in an institution order or any subsequent order resetting disclosure, discovery or trial dates. If the expert is retained after the deadline for disclosure of expert testimony, the party must promptly file a motion for leave to use expert testimony. Upon disclosure by any party of plans to use expert testimony, whether before or after the deadline for disclosing expert testimony, the Board, either on its own initiative or on notice from either party of the disclosure of expert testimony, may issue an order regarding expert discovery and/or set a deadline for any other party to disclose plans to use a rebuttal expert.
      • (iv) The parties may stipulate to a shortening of the discovery period, that there will be no discovery, that the number of discovery requests or depositions be limited, or that reciprocal disclosures be used in place of discovery. Limited extensions of the discovery period may be granted upon stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. If the motion for an extension is denied, the discovery period may remain as originally set or as reset. Disclosure deadlines and obligations may be modified upon written stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board, but the expert disclosure deadline must always be scheduled prior to the close of discovery. If a stipulation or motion for modification is denied, disclosure deadlines may remain as originally set or reset and obligations may remain unaltered.
      • ***
    • (3) A party must make its initial disclosures prior to seeking discovery, absent modification of this requirement by a stipulation of the parties approved by the Board, or a motion granted by the Board, or by order of the Board. Discovery depositions must be properly noticed and taken during the discovery period. Interrogatories, requests for production of documents and things, and requests for admission must be served early enough in the discovery period, as originally set or as may have been reset by the Board, so that responses will be due no later than the close of discovery. Responses to interrogatories, requests for production of documents and things, and requests for admission must be served within thirty days from the date of service of such discovery requests. The time to respond may be extended upon stipulation of the parties, or upon motion granted by the Board, or by order of the Board, but the response may not be due later than the close of discovery. The resetting of a party’s time to respond to an outstanding request for discovery will not result in the automatic rescheduling of the discovery and/or testimony periods; such dates will be rescheduled only upon stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board.

37 C.F.R. § 2.121  Assignment of times for taking testimony and presenting evidence.

  • (a) The Trademark Trial and Appeal Board will issue a trial order setting a deadline for each party’s required pretrial disclosures and assigning to each party its time for taking testimony and presenting evidence ("testimony period"). No testimony shall be taken or evidence presented except during the times assigned, unless by stipulation of the parties approved by the Board, or, upon motion granted by the Board, or by order of the Board. The deadlines for pretrial disclosures and the testimony periods may be rescheduled by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. If a motion to reschedule any pretrial disclosure deadline and/or testimony period is denied, the pretrial disclosure deadline or testimony period and any subsequent remaining periods may remain as set. The resetting of the closing date for discovery will result in the rescheduling of pretrial disclosure deadlines and testimony periods without action by any party. The resetting of a party’s testimony period will result in the rescheduling of the remaining pretrial disclosure deadlines without action by any party.
  • * * * *
  • (c) A testimony period which is solely for rebuttal will be set for fifteen days. All other testimony periods will be set for thirty days. The periods may be shortened or extended by stipulation of the parties approved by the Trademark Trial and Appeal Board, or may be extended upon motion granted by the Board, or by order of the Board. If a motion for an extension is denied, the testimony periods and their associated pretrial disclosure deadlines may remain as set.
  • (d) When parties stipulate to the rescheduling of a deadline for pretrial disclosures and subsequent testimony periods or to the rescheduling of the closing date for discovery and the rescheduling of subsequent deadlines for pretrial disclosures and testimony periods, a stipulation presented in the form used in a trial order, signed by the parties, or a motion in said form signed by one party and including a statement that every other party has agreed thereto, shall be submitted to the Board through ESTTA, with the relevant dates set forth and an express statement that all parties agree to the new dates.
  • (e) A party need not disclose, prior to its testimony period, any notices of reliance it intends to file during its testimony period. However, no later than fifteen days prior to the opening of each testimony period, or on such alternate schedule as may be provided by order of the Board, the party scheduled to present evidence must disclose the name and, if not previously provided, the telephone number and address of each witness from whom it intends to take testimony, or may take testimony if the need arises., … If a party does not plan to take testimony from any witness, it must so state in its pretrial disclosure. When a party fails to make required pretrial disclosures, any adverse party or parties may have a remedy by way of a motion to the Board to delay or reset any subsequent pretrial disclosure deadlines and/or testimony periods. ...

37 C.F.R. § 2.127(a)  [Motions] ... Except as provided in paragraph (e)(1) of the section, a brief in response to a motion shall be filed within twenty days from the date of service of the motion unless another time is specified by the Trademark Trial and Appeal Board, or the time is extended by stipulation of the parties approved by the Board, or upon motion granted by the Board, or upon order of the Board. If a motion for an extension is denied, the time for responding to the motion remains as specified under this section, unless otherwise ordered. Except as provided in paragraph (e)(1) of this section, a reply brief, if filed, shall be filed within twenty days from the date of service of the brief in response to the motion. The time for filing a reply brief will not be extended or reopened. ...

509.01    Nature of Motions

Pursuant to Fed. R. Civ. P. 6(b), made applicable to Board proceedings by 37 C.F.R. § 2.116(a), a party may file a motion for an extension of the time in which an act may or must be done. [ Note 1.] If the motion is filed prior to the expiration of the period as originally set or previously extended, the motion is one to extend a period that has not yet closed (often referred to as a motion to "extend"), and the moving party need only show good cause for the requested extension. If, however, the motion is not filed until after the expiration of the period as originally set or previously extended, the motion is one to extend a period that has closed (often referred to as a motion to "reopen"), and the moving party must show that its failure to act during the time allowed therefor was the result of excusable neglect. [ Note 2.] An exception to the usual requirement for showing excusable neglect when the period for taking an action has expired arises when a defendant is in default because its time to answer has expired. In such circumstances, the showing required is good cause to excuse the default. See TBMP § 312 and TBMP § 508.

NOTES:

 1.   Compare 37 C.F.R. § 2.127(a)  ("The time for filing a reply brief [on a motion] will not be extended or reopened.") with 37 C.F.R. § 2.127(e)(1)  ("The time for filing a motion under [Fed. R. Civ. P.] 56(d) will not be extended").

 2.   Fed. R. Civ. P. 6(b). See also Vital Pharmaceuticals, Inc. v. Kronholm, 99 USPQ2d 1708, 1710 n.10 (TTAB 2011) ("The Board construes a motion to extend an expired period as a motion to reopen such period.").

509.01(a)    Motions to Extend Time

A motion to extend must set forth with particularity the facts said to constitute good cause for the requested extension; mere conclusory allegations lacking in factual detail are not sufficient. [ Note 1.]

Moreover, a party moving to extend time must demonstrate that the requested extension of time is not necessitated by the party’s own lack of diligence or unreasonable delay in taking the required action during the time previously allotted therefor. [ Note 2.] The Board will "scrutinize carefully" any motion to extend time, to determine whether the requisite good cause has been shown. [ Note 3.]

For further information concerning good cause for a motion to extend, see the cases cited in the note below. [ Note 4.]

If a motion to extend the time for taking action is denied, the time for taking such action may remain as previously set. [ Note 5.] If a defendant’s motion to extend its time to file an answer is granted, the order granting the motion will usually include a resetting of all subsequent deadlines or dates, including the discovery conference, disclosures, discovery and testimony periods.

The time for filing a reply brief on a motion will not be extended, even upon the parties’ consent. In addition, while the time for filing a brief in response to a motion for summary judgment may be extended, the time for filing, in lieu thereof, a motion for discovery under Fed. R. Civ. P. 56(d) will not be extended. [ Note 6.] See TBMP § 528.06.

NOTES:

 1.   SFW Licensing Corp. v. Di Pardo Packing Ltd., 60 USPQ2d 1372, 1373 (TTAB 2001) (opposers had not come forward with "detailed facts" required to carry their burden explaining their inaction); Societa Per Azioni Chianti Ruffino Esportazione Vinicola Toscana v. Colli Spolentini Spoletoducali SCRL, 59 USPQ2d 1383, 1384 (TTAB 2001) ("Opposer’s counsel, in his declaration, has set forth the facts relating to his other litigation matters in sufficient detail to warrant a finding that good cause exists for at least a limited extension of opposer’s testimony period"); Fairline Boats plc v. New Howmar Boats Corp., 59 USPQ2d 1479, 1480 (TTAB 2000) (motion denied where party failed to provide detailed information regarding apparent difficulty in identifying and scheduling its witnesses for testimony and where sparse motion, containing vague reference to possibility of settlement, demonstrated no expectation that proceedings would not move forward during any such negotiations); Instruments SA Inc. v. ASI Instruments Inc., 53 USPQ2d 1925, 1927 (TTAB 1999) (cursory or conclusory allegations that were denied unequivocally by the nonmovant and were not otherwise supported by the record did not constitute a showing of good cause); Luemme, Inc. v. D. B. Plus Inc., 53 USPQ2d 1758, 1760-61 (TTAB 1999) (sparse motion contained insufficient facts on which to find good cause); Johnston Pump/General Valve Inc. v. Chromalloy American Corp., 13 USPQ2d 1719, 1720 n.3 (TTAB 1989) ("The presentation of one’s arguments and authority should be presented thoroughly in the motion or the opposition brief thereto.").

 2.   National Football League v. DNH Management LLC, 85 USPQ2d 1852, 1854 (TTAB 2008) ("the Board is liberal in granting extensions of time before the period to act has elapsed so long as the moving party has not been guilty of negligence or bad faith and the privilege of extension is not abused" and the moving party has the burden of persuading the Board that it was diligent in meeting its responsibilities; motion denied because opposer failed to make the minimum showing necessary to establish good cause to extend discovery); Luemme, Inc. v. D. B. Plus Inc., 53 USPQ2d 1758, 1760-61 (TTAB 1999) (diligence not shown; discovery requests not served until last day of the discovery period); Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Manufacturing Co., 55 USPQ2d 1848, 1851 (TTAB 2000) (applicant’s motion to extend discovery denied when counsel knew of unavailability of witness a month before, yet delayed until last day to seek an agreement on an extension of time).

 3.   Luemme, Inc. v. D. B. Plus Inc., 53 USPQ2d 1758, 1760-61 (TTAB 1999).

 4.   Chesebrough-Pond’s Inc. v. Faberge, Inc., 618 F.2d 776, 205 USPQ 888, 891 (CCPA 1980) (an attorney has no right to assume that extensions of time will always be granted, and there appears no reason why a brief was not timely filed); Societa Per Azioni Chianti Ruffino Esportazione Vinicola Toscana v. Colli Spolentini Spoletoducale SCRL, 59 USPQ2d 1383, 1383-84 (TTAB 2001) (the press of other litigation may constitute good cause to extend but alleged deficiencies in discovery responses not good cause to extend discovery where timely motion to compel was not filed); Procyon Pharmaceuticals Inc. v. Procyon Biopharma Inc., 61 USPQ2d 1542, 1543-44 (TTAB 2001) (petitioner failed to explain how activity of rearranging its laboratory facilities during relevant time period prevented taking testimony; no detailed information regarding petitioner’s apparent difficulty in preparing and submitting its evidence or why petitioner waited until the last day of its testimony period to request the extension);SFW Licensing Corp. v. Di Pardo Packing Ltd., 60 USPQ2d 1372, 1373 (TTAB 2001) (attorney’s unwarranted and untimely request for permission to withdraw from representation of party viewed as bad faith attempt to obtain an extension of time); Fairline Boats plc v. New Howmar Boats Corp., 59 USPQ2d 1479, 1480 (TTAB 2000) (mere existence of settlement negotiations or proposals, without more, would not justify delay in proceeding with testimony); Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Manufacturing Co., 55 USPQ2d 1848, 1851 (TTAB 2000) (while maternity leave may constitute good cause, in this case defendant’s counsel knew that defendant would not be able to comply with deadline, yet waited until penultimate day of response period to file unconsented motion to extend time); Instruments SA Inc. V. ASI Instruments, Inc., 53 USPQ2d 1925, 1927 (TTAB 1999) (plaintiff’s claim of ongoing bilateral settlement negotiations was rebutted by defendant, and no other reason for plaintiff’s failure to proceed with discovery was shown); Luemme, Inc. v. D.B. Plus Inc., 53 USPQ2d 1758, 1760-61 (TTAB 1999) (plaintiff failed to set forth detailed facts concerning the circumstances - plaintiff’s allegedly busy travel schedule - which necessitated the extension, and record showed that need for extension in fact resulted from plaintiff’s delay and lack of diligence during previously-set discovery period).

 5.   37 C.F.R. § 2.120(a)(2)(iv)  (discovery period); 37 C.F.R. § 2.121(a) (testimony period); 37 C.F.R. § 2.127(a)  (time for responding to a motion); 37 C.F.R. § 2.127(e)(1)  (time for responding to a summary judgment motion); National Football League v. DNH Management LLC, 85 USPQ2d 1852, 1855 (TTAB 2008) (in view of the denial of opposer’s motion to extend discovery, "discovery dates remain as originally set and as a result, the discovery period is closed"); Procyon Pharmaceuticals Inc. v. Procyon Biopharma Inc., 61 USPQ2d 1542, 1544 (TTAB 2001) (petitioner’s testimony period consequently expired where motion to extend testimony period was denied and dates were left as originally set); Fairline Boats plc v. New Howmar Boats Corp., 59 USPQ2d 1479, 1479 (TTAB 2000); Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Manufacturing Co., 55 USPQ2d 1848, 1851 (TTAB 2000); Luemme Inc. v. D.B. Plus Inc., 53 USPQ2d 1758, 1760-61 (TTAB 1999). Cf. C.H. Stuart Inc. v. Carolina Closet, Inc., 213 USPQ 506, 507 (TTAB 1980) (three-day testimony period for opposer reset "putting opposer in the same position it would have been in had no motion to compel been filed."). See also NOTICE OF FINAL RULEMAKING, 63 Fed. Reg. 48081, 48091 (September 9, 1998).

 6.   37 C.F.R. § 2.127(a)  and 37 C.F.R. § 2.127(e)(1). See McDonald’s Corp. v. Cambrige Overseas Development Inc., 106 USPQ2d 1339, 1340 (TTAB 2013) (parties’ stipulation to add five days to service by email was improper agreement to automatically extend time to file reply brief or a motion under Fed. R. Civ. P. 56(d)).

509.01(b)    Motions to Reopen Time

509.01(b)(1)    In General

Where the time for taking required action, as originally set or as previously reset, has expired, a party desiring to take the required action must file a motion through ESTTA to reopen the time for taking that action. The movant must show that its failure to act during the time previously allotted therefor was the result of excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B). But see discussion in TBMP § 508 regarding requirement only to show good cause to obtain reopening of time for defendant to file an answer to a complaint.

The analysis to be used in determining whether a party has shown excusable neglect was set forth by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380 (1993), adopted by the Board in Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582 (TTAB 1997). These cases hold that the excusable neglect determination must take into account all relevant circumstances surrounding the party’s omission or delay, including (1) the danger of prejudice to the nonmovant, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. [ Note 1.] See also cases cited throughout this section and in TBMP § 534.02 regarding motions to dismiss under 37 C.F.R. § 2.132, and TBMP § 544 regarding motions for relief from final judgment.

The "prejudice to the nonmovant" contemplated under the first Pioneer factor must be more than the mere inconvenience and delay caused by the movant’s previous failure to take timely action, and more than the nonmovant’s loss of any tactical advantage that it otherwise would enjoy as a result of the movant’s delay or omission. Rather, "prejudice to the nonmovant" is prejudice to the nonmovant’s ability to litigate the case, e.g., where the movant’s delay has resulted in a loss or unavailability of evidence or witnesses that otherwise would have been available to the nonmovant. [ Note 2.]

It has been held that the third Pioneer factor, i.e., "the reason for the delay, including whether it was within the reasonable control of the movant," may be deemed to be the most important of the Pioneer factors in a particular case. [ Note 3.] Additionally, although many excusable neglect decisions which were issued prior to the Board’s 1997 Pumpkin decision may no longer be controlling under the somewhat more flexible excusable neglect standard set out in Pioneer and Pumpkin (e.g., decisions holding that a failure to act due to counsel’s docketing errors is, per se, not the result of excusable neglect), they nonetheless may be directly relevant to the Board’s analysis under the third Pioneer excusable neglect factor. [ Note 4.] For additional cases involving the excusable neglect standard, see TBMP § 534 (Motion for Judgment for Plaintiff’s Failure to Prove Case) and TBMP § 544 (Motion for Relief from Final Judgment).

A party moving to reopen its time to take required action must set forth with particularity the detailed facts upon which its excusable neglect claim is based; mere conclusory statements are insufficient. [ Note 5.]

In addition, for purposes of making the excusable neglect determination, it is irrelevant that the failure to timely take the required action was the result of counsel’s neglect and not the neglect of the party itself. Under our system of representative litigation, a party must be held accountable for the acts and omissions of its chosen counsel. [ Note 6.]

NOTES:

 1.   Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 395 (1993); Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582, 1586 (TTAB 1997). See, e.g., Dating DNA LLC v. Imagini Holdings Ltd., 94 USPQ2d 1889, 1892-93 (TTAB 2010) (weighing all four factors together, motion to reopen discovery denied; opposer’s "oversight" in failing to timely serve initial disclosures and seek an extension of the discovery period does not constitute excusable neglect).

 2.   Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582, 1587 (TTAB 1997) (citing Pratt v. Philbrook, 109 F.3d 18 (1st Cir. 1997)); Paolo’s Associates L.P. v. Bodo, 21 USPQ2d 1899, 1904 (Comm’r 1990).

 3.   See FirstHealth of the Carolinas Inc. v. CareFirst of Maryland Inc., 479 F.3d 825, 81 USPQ2d 1919, 1921-22 (Fed. Cir. 2007) (Court affirmed finding of no excusable neglect based on second and third factors, with third weighed heavily in the analysis); Luster Products Inc. v. Van Zandt, 104 USPQ2d 1877, 1879 (TTAB 2012) (applicant made a calculated strategic decision, within its control, not to take discovery in the hope opposer had lost interest in the case, even though the parties held settlement discussions and opposer requested an extension of the discovery period before it closed); Old Nutfield Brewing Co. v. Hudson Valley Brewing Co., 65 USPQ2d 1701, 1702 (TTAB 2002); Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582, 1586 n.7 (TTAB 1997). See also Giersch v. Scripps Networks Inc., 85 USPQ2d 1306, 1307-08 (TTAB 2007) (respondent’s mistaken belief that counsel for petitioner would agree to an extension request did not relieve respondent of its duty to adhere to appropriate deadlines); Gaylord Entertainment Co. v. Calvin Gilmore Productions Inc., 59 USPQ2d 1369, 1372 (TTAB 2000) (failed to provide specific reasons for former counsel’s inaction); Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Manufacturing Co., 55 USPQ2d 1848, 1851 (TTAB 2000) (counsel’s press of other business, docketing errors and misreading of relevant rule are circumstances wholly within counsel’s control); HKG Industries Inc. v. Perma-Pipe Inc., 49 USPQ2d 1156, 1158 (TTAB 1998) (failed to provide evidence linking the reason for the delay with the expiration of movant’s testimony period); Atlanta-Fulton County Zoo Inc. v. De Palma, 45 USPQ2d 1858, 1859-60 (TTAB 1998) (failure to timely move to extend testimony period was due to counsel’s oversight and mere existence of settlement negotiations did not justify party’s inaction or delay).

 4.   Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582, 1586-87 n.8 (TTAB 1997). Such pre-Pioneer cases include, e.g., Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 18 USPQ2d 1710, 1712 (Fed. Cir. 1991) (no excusable neglect where plaintiff’s counsel unreasonably relied on defendant’s counsel to sign and file plaintiff’s proposed stipulated motion to extend trial dates); American Vitamin Products Inc. v. Dow Brands Inc., 22 USPQ2d 1313, 1315-16 (TTAB 1992) (defendant’s desire to take follow-up discovery and its uncertainty regarding status of plaintiff’s pending motion to strike affirmative defenses did not excuse respondent’s neglect in failing to file timely motion to extend discovery); Hobie Designs Inc. v. Fred Hayman Beverly Hills Inc., 14 USPQ2d 2064, 2065 (TTAB 1990) (no excusable neglect where defendant’s failure to timely respond to certain discovery requests was due to defendant’s oversight or lack of care in reading discovery requests); Consolidated Foods Corp. v. Berkshire Handkerchief Co., 229 USPQ 619, 621 (TTAB 1986) (no excusable neglect where defendant’s failure to timely respond to summary judgment motion was due to counsel’s press of other litigation); Coach House Restaurant, Inc. v. Coach and Six Restaurants, Inc., 223 USPQ 176 (TTAB 1984) (same).

 5.   See Gaylord Entertainment Co. v. Calvin Gilmore Productions Inc., 59 USPQ2d 1369, 1372 (TTAB 2000) (no specific reasons for former counsel’s inaction);HKG Industries Inc. v. Perma-Pipe Inc., 49 USPQ2d 1156, 1158 (TTAB 1998) (no factual details as to the date of counsel’s death in relation to plaintiff’s testimony period or as to why other lawyers in deceased counsel’s firm could not have assumed responsibility for the case).

 6.   Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 396 (1993) (citing Link v. Wabash R. Co., 370 U.S. 626 (1962) and United States v. Boyle, 469 U.S. 241 (1985)); Gaylord Entertainment Co. v. Calvin Gilmore Productions Inc., 59 USPQ2d 1369, 1373 (TTAB 2000); CTRL Systems Inc. v. Ultraphonics of North America Inc., 52 USPQ2d 1300, 1302-03 (TTAB 1999); Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582, 1586 (TTAB 1997).

509.01(b)(2)    To Introduce Newly Discovered Evidence

If a party files a motion to reopen its testimony period to introduce newly discovered evidence, the moving party must show not only that the proposed evidence has been newly discovered, but also that the evidence could not have been discovered earlier through the exercise of reasonable diligence. [ Note 1.] However, even if a sufficient showing of due diligence has been made, the Board will not automatically reopen a party’s testimony period for introduction of the new evidence. The Board must also consider such factors as the nature and purpose of the evidence sought to be brought in, the stage of the proceeding, and prejudice to the nonmoving party. [ Note 2.]

NOTES:

 1.   Harjo v. Pro-Football, Inc., 45 USPQ2d 1789, 1790 (TTAB 1998); Lutz Superdyne, Inc. v. Arthur Brown & Bro., Inc., 221 USPQ 354, 360-61 n.11 (TTAB 1984); Rowell Laboratories, Inc. v. Canada Packers Inc., 215 USPQ 523, 529 n.2 (TTAB 1982) (improper to attempt to introduce newly discovered evidence by way of rebuttal testimony rather than moving to reopen testimony period); Oxford Pendaflex Corp. v. Rolodex Corp., 204 USPQ 249, 254 n.5 (TTAB 1979); Tektronix, Inc. v. Daktronix, Inc., 187 USPQ 588, 589 n.1 (TTAB 1975), aff’d, 534 F.2d 915, 189 USPQ 693 (CCPA 1976); Wilson Sporting Goods Co. v. Northwestern Golf Co., 169 USPQ 510, 511-12 (TTAB 1971); Chemetron Corp. v. Self-Organizing Systems, Inc., 166 USPQ 495, 499 n.6 (TTAB 1970); United States Plywood Corp. v. Modiglass Fibers, Inc., 125 USPQ 144, 145 (TTAB 1960).

 2.   L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1886-87 (TTAB 2008) (the Board declined to reopen applicant’s testimony period after the briefs had been filed because (1) the newspaper article sought to be introduced into evidence was not probative of opposer’s intent to abandon its mark and (2) an abandonment claim could only be entertained through a counterclaim to cancel opposer’s registration which would be prejudicial to opposer at such a late date); Harjo v. Pro-Football, Inc., 45 USPQ2d 1789, 1790 (TTAB 1998) (newly discovered evidence was cumulative and redundant and did not have significant probative value to justify further delay of case) (newly discovered evidence was hearsay in nature and pertained to unpleaded defense) (citing Canadian Tire Corp. Ltd. v. Cooper Tire & Rubber Co., 40 USPQ2d 1537, 1539 (Comm’r 1996)).

509.02    Form and Determination of Motions to Extend or Reopen

If a motion to extend or a motion to reopen is made with the consent of the nonmoving party, the motion may be filed either as a stipulation with the signature of both parties, or as a consented motion in which the moving party states that the nonmoving party has given its consent thereto. Parties may file a motion solely to extend or reopen, or caption and incorporate such a motion into another motion, e.g. to compel, strike, etc.

Ordinarily, a consented motion to extend or reopen will be granted by the Board. However, after an answer has been filed, the Board is unlikely to grant even a consented motion to extend the deadline for the parties to conduct the required discovery conference when the basis for the motion is the existence of settlement discussions. [ Note 1.] Similarly, because all written discovery must be completed during the discovery period, the Board will not grant a motion to extend time to respond to discovery requests beyond the close of discovery, even upon consent or stipulation. If a party wishes to extend time to respond to discovery requests, and such an extension contemplates a date after the close of discovery, a party should concurrently move to extend the close of discovery. [ Note 2.]

If the parties file a stipulation or consented motion to extend or reopen a defendant’s time to file an answer to the complaint, the stipulation should specify the new due date for the answer, and all subsequent dates that require rescheduling when the due date for the answer is reset, including the deadline for the required discovery conference, disclosures, discovery and trial. A consented motion to extend or reopen testimony periods and the deadlines for pretrial disclosures, or the discovery period, testimony periods and deadlines for disclosures must be filed with the Board through ESTTA and should be submitted in the form used in a trial order, specifying the closing date for each period to be reset. [ Note 3.] If a consented motion to extend or reopen testimony periods, or the discovery period and testimony periods, specifies only the closing date for the first period to be reset, and the motion is approved, the Board will automatically reschedule the subsequent periods as well, including the dates for remaining disclosures. [ Note 4.] However, receipt by the parties of the Board’s action on the motion will be delayed, because the Board will have to prepare an order specifying the closing date for each period being rescheduled.

When the parties agree to a new schedule of dates and file for approval using the "consent motions" option in ESTTA, the system will prompt the filer to enter new deadlines in a manner that will automatically generate an appropriate schedule in the proper form. If the calculator provided by ESTTA does not reflect all or the correct deadlines required by the parties’ agreed-upon schedule, the filing party should select the "general filings" option in ESTTA and attach or embed in the motion the agreed-upon schedule.

When the Board notes that a consented or stipulated motion to extend time is based on the asserted existence of the parties’ settlement negotiations, the Board may suspend proceedings, sua sponte, for any suitable period of time, including up to six months, to enable the parties to concentrate on settlement and to obviate the filing of numerous extension requests. Such suspension shall be made subject to either party’s right to request resumption of proceedings at any time. See TBMP § 510.03(a). However, after a period of time of extensions or suspension, the parties may be required to report on the progress of their settlement discussions; and periodically thereafter. While settlement is encouraged, the Board also has an interest in seeing its cases conclude in a timely manner. [ Note 5.]

When a motion to extend, or a motion to reopen, is filed without the consent of the nonmoving party, the Board normally will defer action on the motion until after the expiration of the nonmoving party’s time to file a brief in opposition to the motion. If the nonmoving party fails to file a brief in opposition thereto, the Board will normally grant the motion as conceded. [ Note 6.] A motion not stated to be consented will not be granted as conceded until after passage of sufficient time for filing and receipt by the Board of a brief in response. In the case of a telephone conference, the responding party may be excused from filing a responsive brief. See TBMP § 502.06(a). If the nonmoving party contests a motion by filing a responsive brief or by presenting responsive arguments in a telephone conference, the Board will decide the motion on its merits. See TBMP § 502.02(b) (Briefs on Motions) and TBMP § 509.01 regarding the standards to be applied in deciding contested motions to extend or reopen time.

A party must not assume that its motion to extend (much less a motion to reopen) made without the consent of the adverse party will always be granted as a matter of course. [ Note 7.] Moreover, while the Board attempts, where possible, to notify the parties of its decision on an unconsented motion to extend, or a motion to reopen, prior to expiration of the enlargement sought, the Board is under no obligation to do so, and in many cases cannot. [ Note 8.] Cf. TBMP § 202.01. Therefore, it is preferable, at least where an unconsented motion seeks an extension or a reopening of a testimony period or periods and pretrial disclosures, or of the discovery period and testimony periods and disclosures, that the motion request that the new period or periods be set to run from the date of the Board’s decision on the motion. However, in the event that the motion to extend or reopen time is denied, the time for taking required action may remain as previously set. [ Note 9.]

When the Board resets the closing date for discovery, the expert disclosure deadline, which is 30 days prior to the close of the discovery period, and the testimony periods, including pretrial disclosure deadlines, will automatically be reset. However, the resetting of a party’s time to respond to an outstanding request for discovery will not result in the automatic rescheduling of the discovery and/or testimony periods-such dates will be rescheduled only upon stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. [ Note 10.]

A party should not presume that the Board will automatically reset discovery, disclosure and/or trial dates when it determines the pending motion. When the Board determines a pending motion, and there is no motion to extend discovery, disclosure and/or trial dates, the Board, in the exercise of its discretion, may or may not reset relevant dates. A party that wishes to have particular deadlines or periods reset upon the determination of a particular motion should file a motion requesting such action, or caption and include a request to reset the dates in its pending motion, further specifying the deadlines or periods that it wishes to have reset. [ Note 11.]

Extensions of time to seek judicial review of a final decision of the Board (whether by way of appeal to the Court of Appeals for the Federal Circuit or by way of a civil action) may be granted by the Director upon written request, which should be directed to the Office of the Solicitor, not the Board. [ Note 12.] See TBMP § 902.02 (Time for Filing Notice of Appeal) and TBMP § 903.04 (Time for Filing Civil Action).

NOTES:

 1.   Boston Red Sox Baseball Club LP v. Chaveriat, 87 USPQ2d 1767, 1767 n.1 (TTAB 2008) ("It is unlikely the Board will find good cause for a motion to extend or suspend for settlement if the motion is filed after answer but prior to the discovery conference, precisely because the discovery conference itself provides an opportunity to discuss settlement.") (citing MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 72 Fed. Reg. 42242, 42245 (August 1, 2007)).

 2.   37 C.F.R. § 2.120(a)(3).

 3.   37 C.F.R. § 2.121(d).

 4.   37 C.F.R. § 2.121(a).

 537   37 C.F.R. § 2.117(c). Cf. Shen Manufacturing Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1353 n.2 (Fed. Cir. 2004) ("RHL’s applications languished at the United States Patent and Trademark Office ("PTO") for nearly two decades as the result of the parties’ failure to move the applications and corresponding oppositions forward.")

 6.   37 C.F.R. § 2.127(a).

 7.   Chesebrough-Pond’s Inc. v. Faberge, Inc., 618 F.2d 776, 205 USPQ 888, 891-92 (CCPA 1980) (after granting numerous extensions of time to respond to motion for summary judgment, last request denied and motion for summary judgment granted as conceded).

 8.   Chesebrough-Pond’s Inc. v. Faberge, Inc., 618 F.2d 776, 205 USPQ 888, 891 (CCPA 1980); Luemme, Inc. v. D.B. Plus Inc., 53 USPQ2d 1758, 1761 (TTAB 1999) (waiting for Board approval of previous extension request insufficient to justify resetting of dates). Cf. In re Holland American Wafer Co., 737 F.2d 1015, 222 USPQ 273, 275-76 (Fed. Cir. 1984); and In re L.R. Sport Inc., 25 USPQ2d 1533, 1534 (Comm’r 1992).

 9.   See 37 C.F.R. § 2.120(a), 37 C.F.R. § 2.120(a)(1), 37 C.F.R. § 2.121(c), 37 C.F.R. § 2.127(a)  and 37 C.F.R. § 2.127(e)(1). See also Luemme, Inc. v. D. B. Plus Inc., 53 USPQ2d 1758, 1760 (TTAB 1999).

 10.   37 C.F.R. § 2.120(a)(2)(iv) 37 C.F.R. § 2.121(a) and37 C.F.R. § 2.121(a)(3).

 11.   See, e.g., 37 C.F.R. § 2.120(a)(3); The Phillies v. Philadelphia Consolidated Holding Corp., 107 USPQ2d 2149, 2154 n.6 (TTAB 2013) (party should not presume that Board will automatically reset discovery when it determines a pending motion, where motion filed one day prior to the closing date of the discovery period).

 12.   37 C.F.R. § 2.145(e).