704.05(b)    Exhibits to Briefs

Exhibits and other evidentiary materials attached to a party’s brief on the case can be given no consideration unless they were properly made of record during the time for taking testimony. [ Note 1.]

Evidence which was timely filed during the parties’ trial periods need not and should not be resubmitted with a party’s brief. [ Note 2.]

If, after the close of the time for taking testimony, a party discovers new evidence that it wishes to introduce in its behalf, the party may file a motion to reopen its testimony period. However, the moving party must show not only that the proposed evidence has been newly discovered, but also that it could not have been discovered earlier through the exercise of reasonable diligence. See TBMP § 509.01(b).

NOTES:

 1.   See, e.g., Hole In 1 Drinks, Inc. v. Lajtay, 2020 USPQ2d 71345, at *2 (TTAB 2020) (exhibits attached to brief not considered); Norris v. PAVE: Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880, at *2 (TTAB 2019) (inserted screenshots and hypertext link within the text of reply brief, if not previously and properly introduced into the record, not considered); Double Coin Holdings Ltd. v. Tru Development, 2019 USPQ2d 377409, at *2 n.8 (TTAB 2019) (no consideration given to appendixes attached to brief summarizing decisions of federal agencies and articles); Syngenta Crop Protection, Inc. v. Bio-Chek, LLC, 90 USPQ2d 1112, 1116 (TTAB 2009); Bass Pro Trademarks LLC v. Sportsman Warehouse, Inc., 89 USPQ2d 1844, 1848 (TTAB 2008); Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1955 (TTAB 2008); Starbucks U.S. Brands LLC v. Ruben, 78 USPQ2d 1741, 1748 (TTAB 2006) (excerpts from novel not considered); Maytag Co. v. Luskin’s, Inc., 228 USPQ 747, 748 n.5 (TTAB 1986) (third-party registrations attached to brief not considered); Binney & Smith Inc. v. Magic Marker Industries, Inc., 222 USPQ 1003, 1009 n.18 (TTAB 1984) (copy of Canadian Opposition Board decision attached to brief not considered); BL Cars Ltd. v. Puma Industria de Veiculos S/A, 221 USPQ 1018, 1019 (TTAB 1983); Plus Products v. Physicians Formula Cosmetics, Inc., 198 USPQ 111, 112 n.3 (TTAB 1978); Astec Industries, Inc. v. Barber-Greene Co., 196 USPQ 578, 580 n.3 (TTAB 1977); Angelica Corp. v. Collins & Aikman Corp., 192 USPQ 387, 391 n.10 (TTAB 1976). See also L. Leichner (London) Ltd. v. Robbins, 189 USPQ 254, 255 (TTAB 1975); American Crucible Products Co. v. Kenco Engineering Co., 188 USPQ 529, 531 (TTAB 1975); Tektronix, Inc. v. Daktronics, Inc., 187 USPQ 588, 589 n.1 (TTAB 1975), aff’d, 534 F.2d 915, 189 USPQ 693 (CCPA 1976); Curtice-Burns, Inc. v. Northwest Sanitation Products, Inc., 185 USPQ 61, 61 n.2 (TTAB 1975), aff’d, 530 F.2d 1396, 189 USPQ 138 (CCPA 1976); Ortho Pharmaceutical Corp. v. Hudson Pharmaceutical Corp., 178 USPQ 429, 430 n.3 (TTAB 1973).

Compare, Hard Rock Café Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1405 (TTAB 1998) (dictionary definitions attached to applicant’s brief were the proper subject of judicial notice); Plus Products v. Natural Organics, Inc., 204 USPQ 773, 775 n.5 (TTAB 1979) (evidence which had been timely filed was not objectionable when a reproduction of the evidence was later attached to a trial brief) with TBMP § 704.12 regarding judicial notice.

 2.   See Norris v. PAVE: Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880 at *2 (TTAB 2019) (not necessary to submit duplicates of material that is already in record); Corporacion Habanos SA v. Guantanamera Cigars Co., 102 USPQ2d 1085, 1092 (TTAB 2012) (same); Syngenta Crop Protection, Inc. v. Bio-Chek, LLC, 90 USPQ 2d 1112, 1116 (TTAB 2009); Life Zone, Inc. v. Middleman Group, Inc., 87 USPQ2d 1953, 1955 n.4 (TTAB 2008) (attaching previously-filed evidence to a brief is neither a courtesy nor a convenience to the Board).