540 Motion For Augmented Panel Hearing
"The Trademark Trial and Appeal Board shall include the Director, Deputy Director of the United States Patent and Trademark Office, the Commissioner for Patents, the Commissioner for Trademarks, and administrative trademark judges who are appointed by the Director." [ Note 1.] Each case before the Board is heard by a panel of at least three judges. [ Note 2.] In addition, cases before the Board may be heard by panels including one or more of the above-noted senior executive officials of the USPTO. [ Note 3.] Further, the Board may use an augmented panel to hear a case. [ Note 4.] An augmented panel may include any number of Board judges exceeding three, that is, from four to the entire body of judges and one or more of the above-noted senior executive officials of the USPTO. [ Note 5.]
A decision by the Board to use an augmented panel may be made either upon the Board’s own initiative, or upon motion filed by a party to the proceeding. A motion requesting that a case be heard by an augmented panel should be filed no later than the time for requesting an oral hearing on the case (i.e., no later than 10 days after the due date for the filing of the last reply brief in the proceeding- see 37 C.F.R. § 2.129(a) ).
An augmented panel is used by the Board only in extraordinary cases, involving precedent-setting issues of exceptional importance, or when consideration by an augmented panel is necessary to secure or maintain uniformity of Board decisions. [ Note 6.]
NOTES:
1. Trademark Act § 17(b), 15 U.S.C. § 1067(b).
2. See, e.g., 37 C.F.R. § 2.129(a) and 37 C.F.R. § 2.142(e)(1). See also Trademark Act § 17, 15 U.S.C. § 1067.
4. See, e.g., In re Alappat, 33 F.3d 1526, 31 USPQ2d 1545, 1547 (Fed. Cir. 1994) (Section 7 grants Director the authority to designate the members of a panel and expanded panel including senior executive officials of the USPTO); see also Board of Trustees of the University of Alabama v. Pitts, 115 USPQ2d 1099, 1100 (TTAB 2015) (augmented panel assembled to decide request to re-open, vacate, and dismiss prior precedential decision); In re Lebanese Arak Corp., 94 USPQ2d 1215, 1215, 1221 (TTAB 2010) (augmented panel of five judges used in the disparagement case; two judges dissented); Eurostar, Inc. v. "Euro-Star" Reitmoden GmbH & Co. KG, 34 USPQ2d 1266, 1267 (TTAB 1995) (augmented panel of nine judges in announcing Board’s policy with respect to cancellation premised on Trademark Act § 18, 15 U.S.C. § 1068); In re Ferrero S.p.A., 22 USPQ2d 1800, 1800 (TTAB 1992) (augmented panel used to overrule previous Board decision barring examining attorneys from requesting reconsideration), recon. denied, 24 USPQ2d 1061 (TTAB 1992); In re Johanna Farms Inc., 8 USPQ2d 1408, 1409 (TTAB 1988) (oral hearing held before augmented panel of eight Board members "[i]n view of the issues presented by this case"); In re McDonald’s Corp., 230 USPQ 210, 212 n.5 (TTAB 1986) (augmented five-member panel used for rehearing in consolidated cases); In re WSM, Inc., 225 USPQ 883, 884 (TTAB 1985) (augmented panel used to delineate rights in FCC "assigned" call letters for radio broadcasting services).
5. For information concerning the constitution of USPTO Board panels, see In re Alappat, 33 F.3d 1526, 31 USPQ2d 1545, 1547 (Fed. Cir. 1994) (Director has authority to constitute a new panel for purposes of reconsideration).
6. See, e.g., Board of Trustees of the University of Alabama v. Pitts, 115 USPQ2d 1099, 1100 (TTAB 2015); In re Lebanese Arak Corp., 94 USPQ2d 1215, 1215 (TTAB 2010); In re Active Ankle Systems, Inc., 83 USPQ2d 1532, 1534 (TTAB 2007); Eurostar, Inc. v. "Euro-Star" Reitmoden GmbH & Co. KG, 34 USPQ2d 1266, 1267 (TTAB 1995); In re Johanna Farms Inc., 8 USPQ2d 1408, 1409 (TTAB 1988); In re McDonald’s Corp., 230 USPQ 210, 212 n.5 (TTAB 1986); In re WSM, Inc., 225 USPQ 883, 884 (TTAB 1985). See also Federal Circuit Rule 35; and Crocker National Bank v. Canadian Imperial Bank of Commerce, 223 USPQ 909, 909 n.1 (TTAB 1984) (augmented panel of eight members because of the importance of the issues). Cf. Fioravanti v. Fioravanti Corrado S.R.L., 1 USPQ2d 1304, 1305 (TTAB 1986) (case not appropriate for designation of more than three-member panel) denying reconsideration of 230 USPQ 36 (TTAB 1986).