707.03(b)(1) On Ground of Untimeliness
A party may not take a testimony deposition or submit a testimony affidavit or declaration outside of its assigned testimony period, except by stipulation of the parties approved by the Board, or on motion granted by the Board, or by order of the Board. [ Note 1.] See TBMP § 701.
When there is no such approved stipulation, granted motion or Board order, and a testimony deposition is taken or testimony is submitted by declaration or affidavit after the close of the deposing or offering party's testimony period, an adverse party may file a motion to strike the testimony, in its entirety, as untimely. See TBMP § 533.01. Alternatively, an adverse party may raise this ground for objection in its brief on the case or in an appendix or separate statement of objections attached to the brief. [ Note 2.] See TBMP § 801.03. Cf. TBMP § 707.02(b)(1).
On the other hand, when a testimony deposition is noticed for a date prior to the opening of the deposing party's testimony period, or affidavit or declaration testimony is submitted prior to the opening of the submitting party’s testimony period, an adverse party that fails to promptly object to the testimony on the ground of untimeliness may be found to have waived this ground for objection, because the premature scheduling or submission of testimony is an error which can be corrected on seasonable objection. [ Note 3.]
NOTES:
1. 37 C.F.R. § 2.121(a). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69963 (October 7, 2016) ("The Office is amending § 2.121(a) to clarify that evidence must be presented during a party’s testimony period. … These amendments codify current Office practice.").
2. 37 C.F.R. § 2.128(b). Effective January 14, 2017, 37 C.F.R. § 2.128(b) was amended to clarify and codify current practice that evidentiary objections may be set out in a separate appendix that does not count against the page limit for a brief. MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69967 (October 7, 2016).
3. See Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (objection to timeliness of testimony deposition taken two days before period opened, but raised for the first time in brief, waived).