502.02(b) Briefs on Motions
Every motion must embody or be accompanied by a brief. [ Note 1.]
Briefs on motions, and any exhibits thereto, must meet the general requirements for submissions to the Board set forth in 37 C.F.R. § 2.126. See TBMP § 106.03 (Form of Submissions).
Briefs on motions are also subject to page limitations and time requirements. [ Note 2.] Briefs in support of and in response to a motion may not exceed 25 pages in length and a reply brief may not exceed 10 pages. [ Note 3.] Exhibits submitted with the brief are not counted in determining the length of the brief. However, because 37 C.F.R. § 2.127(a) does not require an index of cases and authorities or a table of contents, should a party elect to include these items, they will count as part of the page limit for the brief. [ Note 4.]
A brief in response to a motion, except a motion for summary judgment, must be filed within 20 days from the date of service of the motion. [ Note 5.] When a motion for summary judgment is filed, a brief in response, or a motion for Fed. R. Civ. P. 56(d) discovery must be filed within 30 days from the date of service of the summary judgment motion. [ Note 6.] See also TBMP § 528.02 for further information regarding the time for filing a motion for summary judgment. The time for filing a responsive brief may be extended, but the time for filing, in lieu thereof, a motion for Fed. R. Civ. P. 56(d) discovery will not be extended. See TBMP § 528.06 (Request for Discovery to Respond to Summary Judgment).
These time periods for responding to motions shall apply unless another time is specified by the Board; or the time is extended by stipulation of the parties approved by the Board or by order of the Board on motion for good cause; or the time is reopened by stipulation of the parties approved by the Board or by order of the Board on motion showing excusable neglect. [ Note 7.] See TBMP § 509. If a motion for an extension of time to respond to a motion is denied, the time for responding to the motion remains as specified under 37 C.F.R. § 2.127(a), unless otherwise ordered. [ Note 8.]
A reply brief, if filed, including a reply brief for a summary judgment motion, shall be filed within 20 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, even upon the parties’ consent. [ Note 9.] No further papers (including surreply briefs) will be considered by the Board. [ Note 10.] The filing of reply briefs is discouraged, as the Board generally finds that reply briefs have little persuasive value and are often a mere reargument of the points made in the main brief. [ Note 11.] If the nonmoving party does not file a responsive brief, a reply brief should not be filed.
In general, all motions should be filed separately, or at least be captioned separately, to ensure they receive attention. A party should not embed a motion in another filing that is not routinely reviewed by the Board upon submission. [ Note 12.]
NOTES:
1. 37 C.F.R. § 2.127(a). See Melwani v. Allegiance Corp., 97 USPQ2d 1537, 1541 n.15 (TTAB 2010) (citing 37 C.F.R. § 2.127(a)).
3. 37 C.F.R. § 2.127(a). See also Mattel Inc. v. Brainy Baby Co., 101 USPQ2d 1140, 1141 (TTAB 2011) (reply brief not considered because it exceeded the page limit); Cooper Technologies Co. v. Denier Electric Co., 89 USPQ2d 1478, 1479 (TTAB 2008) (the page limitation for a "brief in response to a motion" applies to a brief in which an opposition to a motion and a cross-motion are combined but address the same issues; in other words, one cannot exceed the page limitation for a brief by combining an opposition brief and cross-motion addressing the same issue); Ron Cauldwell Jewelry, Inc. v. Clothestime Clothes, Inc., 63 USPQ2d 2009, 2010 (TTAB 2002) (reply brief was untimely and exceeded page limit); Estate of Shakur v. Thug Life Clothing Co., 57 USPQ2d 1095, 1096 (TTAB 2000) (respondent improperly attempted to circumvent the page limitations in 37 C.F.R. § 2.127(a) by "dissect[ing] what is a single motion to compel into two motions separately addressing the interrogatories and document requests in order to file briefs totaling 50 pages").
4. Saint-Gobain Corp. v. Minnesota Mining and Manufacturing Co., 66 USPQ2d 1220, 1222 (TTAB 2003). See also Mattel Inc. v. Brainy Baby Co., 101 USPQ2d 1140, 1141 (TTAB) (over-length reply brief included a table of contents and a table of authorities).
5. 37 C.F.R. § 2.127(a). See also MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69960 (Oct. 7, 2016) ("provision adding five days to the prescribed period for action after service by the postal service or overnight courier" removed, "[a]ll fifteen-day response dates initiated by a service date are amended to twenty days.").
6. 37 C.F.R. § 2.127(e)(1). See McDonald’s Corp. v. Cambrige Overseas Development Inc., 106 USPQ2d 1339, 1340 (TTAB 2013) (extension of Fed. R. Civ. P. 56(d) motion prohibited by 37 C.F.R. § 2.127(e)(1)).
7. Fed. R. Civ. P. 6(b).
9. 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) (denying parties’ stipulation to provide for additional five days, noting that such a stipulation would violate the provisions of 37 C.F.R. § 2.127, which do not allow for extensions of time to file reply briefs); Ron Cauldwell Jewelry, Inc. v. Clothestime Clothes, Inc., 63 USPQ2d 2009, 2010 (TTAB 2002) (approval of consented motion to extend time to file reply brief vacated).
10. 37 C.F.R. § 2.127(a) and 37 C.F.R. § 2.127(e)(1); Pioneer Kabushiki Kaisha v. Hitachi High Technologies America, Inc., 74 USPQ2d 1672, 1677 (TTAB 2005) (because 37 C.F.R. § 2.127(a) prohibits the filing of surreply briefs, opposer’s surreply to applicant’s motion was not considered); No Fear Inc. v. Rule, 54 USPQ2d 1551, 1553 (TTAB 2000).
11. No Fear Inc. v. Rule, 54 USPQ2d 1551, 1553 (TTAB 2000); 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"); S & L Acquisition Co. v. Helene Arpels Inc., 9 USPQ2d 1221, 1223 n.4 (TTAB 1987) (reply brief, constituting mere reargument given no consideration).
12. See Melwani v. Allegiance Corp., 97 USPQ2d 1537, 1541 (TTAB 2010); and Sinclair Oil Corp. v. Kendrick, 85 USPQ2d 1032, 1033 n.3 (TTAB 2007).