707.03(a)    In General

As in the case of an objection to a notice of reliance, an objection to trial testimony must be raised promptly if the defect is one that can be obviated or removed, failing which it is deemed waived. [ Note 1.] Parties are discouraged from filing objections that are not outcome-determinative or that do not have an effect on either their own or their adversary’s position. [ Note 2.] The objections, which are waived unless promptly raised, are basically procedural in nature. Objections to trial testimony are not waived for failure to make them during or before the taking of a deposition, or after receipt of a testimony declaration or affidavit, provided that the ground for objection is not one that might have been obviated or removed if presented at that time. These objections are basically substantive in nature. [ Note 3.] The grounds for objection to trial testimony and the procedures for raising them are discussed below.

NOTES:

 1.   See, e.g., Societe Des Produits Nestle S.A. v. Taboada, 2020 USPQ2d 10893, at *7 (TTAB 2020) (objection to inadequate pretrial disclosure overruled as untimely when first raised in trial brief because objection is curable and should have been made by the prompt filing of a motion to strike upon submission of testimony declaration and exhibits); Moke America LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *5 (TTAB 2020) (objection to foundation raised for the first time in trial brief is untimely because it is curable), appeal filed, No. 3:20-cv-00400-MHL (E.D. Va. June 5, 2020); Nahshin v. Product Source International LLC, 107 USPQ2d 1257, 1259 (TTAB 2013) ("As a general rule, objections that are curable must be seasonably raised, or they will be deemed waived"; objections to portions of depositions on written questions deemed waived), aff’d, 112 F. Supp. 3d 383 (E.D. Va. 2015).

 2.   See, e.g., International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *3 (TTAB 2020) (Board declined to consider applicants’ 150 individual objections), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022); UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1875-77 (TTAB 2011) (despite stipulations, opposer filed 25 pages of objections and applicant filed 100 pages of objections, essentially subverting the steps taken to streamline the process and burdening the Board; Board further set out specific objections as examples of what it overruled); Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1501 (TTAB 2005) ("At the oral hearing, pursuant to the Board’s inquiry, counsel indicated that none of the objected-to evidence is outcome determinative. Several of the parties’ objections merely reiterate what was raised in their motions to strike, and, thus, these evidentiary issues have already been handled above in deciding the various motions. … The parties spent an inordinate amount of effort on evidentiary disputes. The gamesmanship during discovery, which then carried over into certain aspects of the trial phase, is breathtaking, and both sides are guilty of participating in this wasteful behavior."), aff’d, 479 F.3d 825, 81 USPQ2d 1919 (Fed. Cir. 2007). Cf. Spiritline Cruises LLC v. Tour Management Services, Inc., 2020 USPQ2d 48324, at *3 (TTAB 2020) (Board is "well equipped to assess the testimony and the degree of accuracy of any subsequent characterization of it without resorting to striking testimony or questions," denying opposer’s objection and motion to strike a question of counsel, asked during a Rule 30(b)(6) discovery deposition, that had been submitted as trial evidence).

 3.   See generally Moke America LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *3-9 (TTAB 2020) (discussing curable vs. noncurable objections), civil action filed, No. 3:20-cv-00400-MHL (E.D. Va. June 5, 2020). See also International Dairy Foods Association v. Interprofession du Gruyère, 2020 USPQ2d 10892, at *3-7 (TTAB 2020) (objections based on lack of personal knowledge, hearsay and relevance raised for first time in main brief are timely), aff’d, ___ F. Supp. 3d ___, 2021 WL 6286234 (E.D. Va. Dec. 15, 2021), appeal docketed, No. 22-1041 (4th Cir. Jan. 11, 2022).