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)).