1705.03 Evidence and Proof of Facts
A petition must include a statement of the relevant facts and be accompanied by any evidence to be considered. 37 C.F.R. §§2.146(c), 2.147(a)(2)(ii)-(iii), (b)(2)(i)-(iii). When facts are to be proved, the petitioner must submit proof in the form of an affidavit or declaration under 37 C.F.R. §2.20. 37 C.F.R. §§2.146(c), 2.147(a)(2)(iii), (b)(2)(i). See TMEP §611.03(a) regarding who can sign a verification.
It is inappropriate for the petitioner to "dump" evidence and leave it to the Office to determine its possible relevance. Therefore, a petition accompanied by more than 75 pages of evidence must include a separate itemized index listing the supporting evidence and identifying what fact(s) it supports, or the petition will be considered incomplete. A staff attorney or paralegal in the Office of the Deputy Commissioner for Trademark Examination Policy will notify the petitioner that an index is required, and grant the petitioner 30 days to submit the index. If the petitioner does not submit the index within the time allowed, the petition will be denied, or, in appropriate cases, a decision on petition will be rendered based on the first 75 pages of evidence.
An affidavit or declaration supporting a petition should be based on firsthand knowledge. For example, if the petition arises because the registrant did not receive an email notification for a post-registration Office action, it should be accompanied by the affidavit or declaration of the person alleging non-receipt, attesting to the fact that they never received notice of the USPTO Office action.
When a petition includes an unverified assertion that is not supported by evidence, a staff attorney or paralegal in the Office of the Deputy Commissioner for Trademark Examination Policy will notify the petitioner that an affidavit or declaration is required, and grant the petitioner 30 days to submit the necessary verification. If the petitioner does not submit a verification within the time allowed, the petition will be denied, or, in appropriate cases, a decision on petition will be rendered based on the information in the record, without consideration of the unverified assertion.
This procedure is also followed with respect to physical evidence. If physical evidence is available, such as a printout of a TEAS "Success" page that shows the date of actual receipt of a document by the USPTO (see TMEP §303.02(a)), the petitioner should include the evidence with the initial petition. However, if the evidence is omitted from the initial filing, the USPTO will give the petitioner an opportunity to supplement the petition within a specified time limit, normally 30 days.