528.08 Entry of Summary Judgment in Favor of Nonmoving Party
Fed. R. Civ. P. 56 (f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
- (1) grant summary judgment for a nonmovant;
- (2) grant the motion on grounds not raised by a party; or
- (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.
If the Board concludes, upon motion for summary judgment, that there is no genuine dispute of material fact, but that it is the nonmoving party, rather than the moving party, which is entitled to judgment as a matter of law, the Board may, after giving notice and a reasonable time to respond, in appropriate cases, grant summary judgment in favor of the nonmoving party (that is, enter summary judgment in favor of the nonmoving party even though there is no cross-motion for summary judgment). [ Note 1.]
NOTES:
1. See, e.g., Accu Personnel Inc. v. Accustaff Inc., 38 USPQ2d 1443, 1446 (TTAB 1996) (nonmovant entitled to summary judgment where question was one of law); The Clorox Co. v. Chemical Bank, 40 USPQ2d 1098, 1106 nn. 17 and 18 (TTAB 1996) (effect of assigning ITU application if statutory exception is not met is one of law and could be decided in nonmovant’s favor); Tonka Corp. v. Tonka Tools, Inc., 229 USPQ 857, 858-59 (TTAB 1986) (granted to nonmovant as to its standing); Crocker National Bank v. Canadian Imperial Bank of Commerce, 223 USPQ 909 (TTAB 1984) (granted to nonmovant applicant because application elements allegedly missing from application were not required by Paris Convention); Visa International Service Assn v. Life-Code Systems, Inc., 220 USPQ 740, 744-45 (TTAB 1983) (nonmovant entitled to judgment as a matter of law on issues of abandonment, non-use and fraud).