112    Times for Taking Action

37 C.F.R. § 2.196  Expiration on Saturday, Sunday or Federal holiday. Whenever periods of time are specified in this part in days, calendar days are intended. When the day, or the last day fixed by statute or regulation by or under this part for taking any action or paying any fee in the Office falls on a Saturday, Sunday or Federal holiday within the District of Columbia, the action may be taken, or the fee paid, on the next succeeding day that is not a Saturday, Sunday or a Federal holiday.

For example, if, as set by the Board, an answer to a complaint falls due on a Saturday, Sunday, or federal holiday within the District of Columbia, an answer filed on the next business day will be considered timely. If, as set by the Board, the close of discovery falls on a Saturday, Sunday, or federal holiday within the District of Columbia, and such date is the due date for written responses to discovery requests (i.e., interrogatories, requests for production of documents, and requests for admission), such responses may be served, and discovery depositions may be taken, on the next business day. Similarly, if, as set by the Board, the close of a testimony period falls on a Saturday, Sunday, or federal holiday within the District of Columbia, testimony depositions may be taken, testimony declarations and affidavits may be filed, and other evidence may be offered, on the next business day. [ Note 1.]

If, because of some unscheduled event, such as adverse weather conditions, the Office is officially closed by Executive Order of the President or by the Office of Personnel Management for an entire day, that day will be regarded by the Office as a federal holiday within the District of Columbia. Any action due to be taken, or fee due to be paid, on that day, will be considered timely if the action is taken, or the fee paid, on the next succeeding business day on which the Office is open. If, because of an unscheduled event, the Office is closed for part of a business day, but is open for business for some part of the day between 8:30 a.m. and 5:00 p.m. Eastern Time, any action due to be taken, or fee due to be paid, on that day remains due on that day. [ Note 2.] Notification of any change in this policy, given the particular circumstances of an unscheduled event, will be posted on the Office website at www.uspto.gov. [ Note 3.] Except for maintenance and emergencies, ESTTA remains available for electronic filing of papers at all times despite official closure of the Office.

Please Note: 37 C.F.R. § 2.196  is not applicable when the opening of an assigned period (e.g., discovery, testimony) falls on a Saturday, Sunday or Federal holiday.

In addition, 37 C.F.R. § 2.196  does not apply to a motion that must be filed before the day of the deadline for pretrial disclosures for the first testimony period. [ Note 4.]

The provisions of 37 C.F.R. § 2.196  do not change the date on which the relevant action must be taken. Instead, the provisions allow an action to be considered timely filed if taken on the next succeeding business day notwithstanding the earlier expiration of the due date on the weekend on or a federal holiday. Thus, when the date for any subsequent action runs from a prior due date or close of a period (e.g., filing a brief after the close of the last testimony period), the due date for the subsequent action is calculated from the actual due date of the prior action or close of the period, not the adjusted date under 37 C.F.R. § 2.196.

NOTES:

 1.   See, e.g., Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1653 n.8 (TTAB 2007) (Board generally does not distinguish business days and calendar days unless last day of period is not a business day); Strang Corp. v. Stouffer Corp., 16 USPQ2d 1309, 1310 (TTAB 1990) (when the five-year anniversary date of a registration falls on a weekend or holiday, petition filed on next business day is considered to have been filed within five years from the issue date). Cf. National Football League v. DNH Mgmt. LLC, 85 USPQ2d 1852, 1854 n.6 (TTAB 2008) (where discovery period closed on Saturday, service of written discovery requests the following Monday was not untimely). Please Note: Discovery requests must be served early enough in the discovery period so that responses are due no later than the close of discovery. Similarly, discovery depositions must be properly noticed and taken during the discovery period. 37 C.F.R. § 2.120(a)(3).

 2.   See, e.g., "Filing of Papers During Unscheduled Closings of the Patent and Trademark Office", 1076 TMOG 6 (March 10, 1987), www.uspto.gov/web/offices/com/sol/og/con/files/cons032.htm.

 3.   See, e.g., Notice of Shutdown of Certain Electronic Systems of the United States Patent and Trademark Office From Tuesday, December 22, 2015 through Thursday, December 24, 2015, http://www.uspto.gov/trademark/trademark-updates-and-announcements/shutdown-certain-electronic-systems-united-states; and Notice of USPTO Closure and Designation of September 11, 2001 under 35 U.S.C. § 21(b) for Purpose of Determining Timeliness of Actions or Fees. www.uspto.gov/emergencyalerts/emergencyclosure01.htm.

 4.   Lumber Liquidators Services, LLC v. Columbia Insurance Co., 2022 USPQ2d 31, at *7-8 (TTAB 2022) (motion for summary judgment untimely where filed Tuesday after a Monday holiday, and the deadline for pretrial disclosures was Saturday): Asustek Computer Inc. v. Chengdu Westhouse Interactive Entertainment Co., Ltd., 128 USPQ2d 1470, 1471 (TTAB 2018) (motion to compel filed Monday, the deadline for first pretrial disclosures, untimely).