1214 Consolidation
When an applicant has filed an ex parte appeal to the Board in two or more copending applications, and the cases involve common issues of law or fact, the Board, upon request by the applicant or examining attorney or upon its own initiative, may order the consolidation of the appeals for purposes of briefing, oral hearing, and/or final decision. [ Note 1.] Cf. TBMP § 511. The Board may also consider two or more cases in one opinion even if they have not been consolidated. [ Note 2.] Even if the Board renders its decisions on two appeals in a single opinion, the appeals will not necessarily be consolidated. [ Note 3.]
Although cases consolidated prior to briefing may be presented on the same brief, they do not have to be. The applicant (and/or the examining attorney) may file a different brief in each case, if the applicant (and/or the examining attorney) so desires. When consolidated cases are to be presented on the same brief, the brief should bear the serial number of each consolidated application, and a copy of the brief should be submitted for each application.
NOTES:
1. See, e.g., In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1085 (TTAB 2016) (Board consolidated appeals in two applications upon examining attorney’s motion); In re Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012) (Board sua sponte consolidated two appeals); In re Country Music Association, Inc., 100 USPQ2d 1824, 1827 (TTAB 2011) (same); In re America Online Inc., 77 USPQ2d 1618, 1618 (TTAB 2006) (Board consolidated appeals in four applications upon applicant’s motion); In re Bacardi & Co. Ltd., 48 USPQ2d 1031, 1033 (TTAB 1997); (Board sua sponte considered appeals in five applications together and rendered single opinion); In re Pebble Beach Co., 19 USPQ2d 1687, 1687 (TTAB 1991); In re Del E. Webb Corp., 16 USPQ2d 1232, 1233 (TTAB 1990) (proceedings consolidated because issue in two appeals the same); In re Anton/Bauer Inc., 7 USPQ2d 1380, 1381 (TTAB 1988) (applicant requested after hearing on one appeal that appeals be consolidated; Board granted and decided appeals in single decision); In re Weber-Stephen Products Co., 3 USPQ2d 1659, 1662 n.7 (TTAB 1987); In re Petersen Manufacturing Co., 2 USPQ2d 2032, 2033 (TTAB 1987) (four appeals consolidated for oral hearing and decision); In re San Diego National League Baseball Club, Inc., 224 USPQ 1067, 1608 (TTAB 1983) (appeals consolidated for oral hearing and decision).
2. In re Pohl-Boskamp GmbH & Co., 106 USPQ2d 1042, 1043 (TTAB 2013) (two appeals involving common issues of law and fact decided in a single opinion); In re Binion, 93 USPQ2d 1531, 1533 (TTAB 2009) (because appeals involved common questions of law and fact and records were practically identical, Board decided both in a single opinion); In re Vertex Group LLC, 89 USPQ2d 1694, 1695 (TTAB 2009) (because of virtually identical issues presented in appeals for two applications, Board issued single opinion); In re Supply Guys Inc., 86 USPQ2d 1488, 1490 (TTAB 2008) (because issues and record similar, Board issued one opinion that addressed applicant’s three applications); In re Orange Communications Inc., 41 USPQ2d 1036, 1037-39 (TTAB 1996); In re Sandberg & Sikorski Diamond Corp., 42 USPQ2d 1544, 1546 (TTAB 1996) (because issues and record in each case essentially identical, Board rendered decision as to two applications in a single opinion, noting that applicant and examining attorney treated the cases as consolidated for purposes of briefs and oral hearing).
3. In re Hudson News Co., 39 USPQ2d 1915, 1916 n.5 (TTAB 1996) (Board issued a single opinion in interest of judicial economy, but each appeal stands on its own merits), aff’d without opinion (Fed. Cir. 1997).