703.01(d) Time and Place of Oral Testimony Deposition
- (a)
- (1) The testimony of witnesses in inter partes cases may be submitted in the form of an affidavit or a declaration pursuant to § 2.20 and in conformance with the Federal Rules of Evidence, filed during the proffering party’s testimony period, subject to the right of any adverse party to elect to take and bear the expense of oral cross-examination of that witness as provided under paragraph (c) of this section if such witness is within the jurisdiction of the United States, or conduct cross-examination by written questions as provided in § 2.124 if such witness is outside the jurisdiction of the United States, and the offering party must make that witness available; or taken by deposition upon oral examination as provided by this section; or by deposition upon written questions as provided by § 2.124.
- (2) Testimony taken in a foreign country shall be taken: by deposition upon written questions as provided by § 2.124, unless the Board, upon motion for good cause, orders that the deposition be taken by oral examination, or the parties so stipulate;
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- (c) Notice of examination of witnesses. Before the oral depositions of witnesses shall be taken by a party, due notice in writing shall be given to the adverse party or parties, as provided in § 2.119(b), of the time when and place where the depositions will be taken, of the cause or matter in which they are to be used, and the name and address of each witness to be examined. Depositions may be noticed for any reasonable time and place in the United States. A deposition may not be noticed for a place in a foreign country except as provided in paragraph (a)(2) of this section. No party shall take depositions in more than one place at the same time, nor so nearly at the same time that reasonable opportunity for travel from one place of examination to the other is not available. When a party elects to take oral cross-examination of an affiant or declarant, the notice of such election must be served on the adverse party and a copy filed with the Board within 20 days from the date of service of the affidavit or declaration and completed within 30 days from the date of service of the notice of election.
An oral testimony deposition upon direct examination may be noticed for any reasonable time during the deposing party's testimony period. [ Note 1.] When a party elects to take oral cross-examination of an affiant or declarant, the notice of such election must be served on the adverse party and a copy filed with the Board within 20 days from the date of service of the affidavit or declaration and completed within 30 days from the date of service of the notice of election. [ Note 2.] A testimony deposition may not be taken outside the deposing party's testimony period except by stipulation of the parties approved by the Board, or, on motion, by order of the Board. [ Note 3.] See TBMP § 701.
An oral testimony deposition to be taken in the United States may be noticed for any reasonable place. [ Note 4.] A party may not take oral testimony depositions in more than one place at the same time, nor so nearly at the same time that reasonable opportunity for travel from one place of examination to the other is not available. [ Note 5.]
A testimony deposition may not be noticed for a place in a foreign country, unless the deposition is to be taken on written questions as provided by 37 C.F.R. § 2.124, or unless the Board, on motion for good cause, orders, or the parties stipulate, that the deposition be taken by oral examination. [ Note 6.] See TBMP § 703.01(b).
If the parties so stipulate in writing, a testimony deposition may be taken before any person authorized to administer oaths, at any place, on any notice, and in any manner, and when so taken may be used like any other deposition. [ Note 7.]
NOTES:
1. See37 C.F.R. § 2.123(a)(1) and 37 C.F.R. § 2.123(c). Cf. USPS v. RPost Communication Ltd., 124 USPQ2d 1045, 1047-48 (TTAB 2017) (notice of election of oral cross-examination of declarants quashed because requiring them to travel from Washington DC, where they live and work, to Santa Monica CA, is not a reasonable place).
3. See 37 C.F.R. § 2.121(a) and Fossil Inc. v. Fossil Group, 49 USPQ2d 1451, 1454 n.1 (TTAB 1998) (stipulation that testimony deposition of applicant's witness could be taken prior to its testimony period on the same day as opposer's witness to achieve efficiencies in time and cost). Cf. Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (where opposer's testimony deposition was taken two days prior to the opening of opposer's testimony period, and applicant first raised a timeliness objection in its brief on the case, objection held waived, since the premature taking of the deposition could have been corrected on seasonable objection).
4. See 37 C.F.R. § 2.123(c). Cf. USPS v. RPost Communication Ltd., 124 USPQ2d 1045, 1047-48 (TTAB 2017) (notice of election of oral cross-examination of declarants quashed because requiring them to travel from Washington DC, where they live and work, to Santa Monica CA, is not a reasonable place).
5. See 37 C.F.R. § 2.123(c).
6. See 37 C.F.R. § 2.123(a), 37 C.F.R. § 2.123(a)(2) and 37 C.F.R. § 2.123(c).