543 Motion For Reconsideration of Final Decision
37 C.F.R. § 2.129(c) Any request for rehearing or reconsideration or modification of a decision issued after final hearing must be filed within one month from the date of the decision. A brief in response must be filed within twenty days from the date of service of the request. The times specified may be extended by order of the Trademark Trial and Appeal Board on motion for good cause.
The filing of a request for rehearing, reconsideration, or modification of a decision issued after final hearing is governed by 37 C.F.R. § 2.129(c). [ Note 1.] See TBMP § 518.
There is no requirement that an adverse party file a brief in response to a request for rehearing, reconsideration, or modification of a decision issued after final hearing. However, it is the better practice to do so. [ Note 2.] If a responsive brief is filed, it must be filed within 20 days from the date of service of the request.
Although 37 C.F.R. § 2.129(c) makes no provision for the filing of a reply brief on a request for rehearing, reconsideration, or modification of a decision issued after final hearing, the Board may, in its discretion, consider such a brief. If a reply brief is filed, it must be filed within 20 days from the date of service of the responsive brief. [ Note 3.]
Generally, the premise underlying a request for rehearing, reconsideration, or modification under 37 C.F.R. § 2.129(c) is that, based on the evidence of record and the prevailing authorities, the Board erred in reaching the decision it issued. The request may not be used to introduce additional evidence [ Note 4.], nor should it be devoted simply to a reargument of the points presented in the requesting party’s brief on the case. Rather, the request normally should be limited to a demonstration that, based on the evidence properly of record and the applicable law, the Board’s ruling is in error and requires appropriate change. [ Note 5.]
If a request for rehearing, reconsideration, or modification of a decision after final hearing is timely filed, the time for filing an appeal, or for commencing a civil action for review of the Board’s decision, will expire sixty-three (63) days after action on the request. [ Note 6.] See TBMP § 902.02 and TBMP § 903.04.
A second or subsequent request for reconsideration is not permitted, and if filed, does not toll the time for filing an appeal of the final decision or commencing a civil action.
NOTES:
1. Cf. 37 C.F.R. § 2.127(b).
2. See Volkswagenwerk Aktiengesellschaft v. Ridewell Corp., 201 USPQ 410, 411 (TTAB 1979) (serious questions raised by applicant’s request for reconsideration ought to have generated response by opposer).
3. See, e.g., Kappa Books Inc. v. Herbko International Inc., 60 USPQ2d 1765, 1766 n.2 (TTAB 2001) ("While there is no provision in the Trademark Rules of Practice for the submission of a reply brief in connection with a request for reconsideration (see Trademark Rule 2.127(b)), we have exercised our discretion and considered the reply brief in this case."), rev’d on other grounds, 308 F.3d 1156, 64 USPQ2d 1375 (Fed. Cir. 2002); Curtice-Burns, Inc. v. Northwest Sanitation Products, Inc., 185 USPQ 61, recon. denied, 185 USPQ 176, 177 n.2 (TTAB 1975) (reply brief considered only to the extent it addressed arguments in responsive brief), aff’d, 530 F.2d 1396, 189 USPQ 138 (CCPA 1976). See also 37 C.F.R. § 2.127(a).
4. See Amoco Oil Co. v. Amerco, Inc., 201 USPQ 126, 127-28 (TTAB 1978) (motion for reconsideration requesting introduction of survey evidence available during movant’s testimony period denied).
5. See, e.g., Steiger Tractor Inc. v. Steiner Corp., 221 USPQ 165 (TTAB 1984), reh’g granted, 3 USPQ2d 1708, 1710 (TTAB 1984); Carl Karcher Enterprises, Inc. v. Gold Star Chili, Inc., 222 USPQ 727, 728-29 (TTAB 1983) (denying motion for reconsideration); Volkswagenwerk Aktiengesellschaft v. Ridewell Corp., 201 USPQ 410, 411 (TTAB 1979) (same).