[Federal Register Volume 81, Number 238 (Monday, December 12, 2016)]
[Rules and Regulations]
[Pages 89382-89383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29728]
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DEPARTMENT OF COMMERCE
Patent and Trademark Office
37 CFR Part 2
[Docket No. PTO-T-2016-0053]
RIN 0651-AD13
Miscellaneous Changes to Trademark Trial and Appeal Board Rules
of Practice; Correction
AGENCY: United States Patent and Trademark Office, Commerce.
ACTION: Final rule; correction.
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SUMMARY: The United States Patent and Trademark Office published in the
Federal Register on October 7, 2016 a final rule, which will become
effective on January 14, 2017, revising the Rules of Practice before
the Trademark Trial and Appeal Board. This document corrects errors in
certain cross-references, clarifies the manner of testimony taken in a
foreign country and the process in depositions upon written questions,
and reincorporates the time frames for cross appeals and cross actions
in that rule.
DATES: This rule is effective January 14, 2017, and applies to all
proceedings pending on or after the effective date.
FOR FURTHER INFORMATION CONTACT: Cheryl Butler, Trademark Trial and
Appeal Board, by email at [email protected], or by telephone at
(571) 272-4259.
SUPPLEMENTARY INFORMATION: The USPTO issues this final rule to correct
inadvertent errors in certain cross-references in Sec. Sec. 2.124(f)
and 2.126(c), to clarify the manner of testimony taken in a foreign
country in Sec. 2.123(a)(2), to clearly incorporate cross-examination
in the process of depositions upon written questions in Sec.
2.124(d)(1), and to reincorporate explicit timing requirements for
cross-appeals and cross-actions in Sec. 2.145(d)(1) and (3) of its
October 7, 2016 final rule revising the Trademark Trial and Appeal
Board Rules of Practice. (81 FR 69950) (published under RIN 0651-AC35).
The first sentence of Sec. 2.123(a)(2) is clarified to separate
motions to take depositions upon written questions by oral examination
from testimony by affidavit or declaration. To implement this
clarification, the phrase ``A testimonial deposition'' is replaced with
``Testimony'' and the clause ``by affidavit or declaration, subject to
the right of any adverse party to elect to take and bear the expense of
cross-examination by written questions of that witness'' is moved to
clearly delineate it.
The first sentence of Sec. 2.124(d)(1) should cross reference
paragraphs (b)(1) and (2) rather than only (b). A paragraph was added
to Sec. 2.124(b) which operated to renumber that section, and the
cross reference was not updated. In addition, in the first, third and
sixth sentences, further clarification was needed to clearly
incorporate the timing for cross-examination upon written questions of
testimony by affidavit or declaration.
The second sentence of Sec. 2.124(f) should cross reference Sec.
2.125(c) rather than Sec. 2.125(b). A paragraph was added to Sec.
2.125, which operated to renumber that section, and the cross reference
was not updated.
The first sentence of Sec. 2.126(c) should cross reference Sec.
2.125(f) rather than Sec. 2.125(e). A paragraph was added to Sec.
2.125, which operated to renumber that section, and the cross reference
was not updated.
The October 7, 2016 final rule amended the timing requirements for
appeals and civil actions, but inadvertently omitted the timing
requirement for cross-actions from Sec. 2.145(d)(3). Therefore, this
correction revises the last sentence in Sec. 2.145(d)(3)
[[Page 89383]]
to reincorporate the timing requirement for cross-actions. Also, this
correction revises Sec. 2.145(d)(1) concerning cross-appeals to have
consistency between Sec. 2.145(d)(3) and (d)(1).
This correcting rule may be issued without prior notice and
opportunity for comment as the corrections are nonsubstantive and being
implemented to avoid inconsistencies and confusion with the rule issued
on October 7, 2016. The USPTO corrects the errors as discussed below.
In FR Doc. 2016-23092, published on October 7, 2016 (81 FR 69950),
make the following corrections:
Sec. 2.123 [Corrected]
0
1. On page 69981, column 2, in paragraph (a)(2) of Sec. 2.123, the
first sentence is corrected to read ``Testimony taken in a foreign
country shall be taken: by deposition upon written questions as
provided by Sec. 2.124, unless the Board, upon motion for good cause,
orders that the deposition be taken by oral examination, or the parties
so stipulate; or by affidavit or declaration, subject to the right of
any adverse party to elect to take and bear the expense of cross-
examination by written questions of that witness.''
Sec. 2.124 [Corrected]
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2. On page 69982, column 3, in paragraph (d)(1) of Sec. 2.124:
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i. The cross reference to ``paragraph (b)'' is corrected to read
``paragraphs (b)(1) and (2)'';
0
ii. The term ``direct testimony'' is corrected to read ``direct
examination'' in both instances;
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iii. In the third sentence the phrase ``or service of a testimony
affidavit or declaration,'' is added before the phrase ``any adverse
party may serve cross questions upon the party who proposes to take the
deposition''; and
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iv. In the sixth sentence the phrase ``or who earlier offered testimony
of the witness by affidavit or declaration'' is added after the phrase
``any party who served cross questions may serve recross questions upon
the party who proposes to take the deposition''.
0
3. On page 69983, column 1, in paragraph (f) of Sec. 2.124, the cross
reference to ``Sec. 2.125(b)'' is corrected to read ``Sec.
2.125(c)''.
Sec. 2.126 [Corrected]
0
4. On page 69983, column 3, in paragraph (c) of Sec. 2.126, the cross
reference to ``Sec. 2.125(e)'' is corrected to read ``Sec.
2.125(f)''.
Sec. 2.145 [Corrected]
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5. On page 69987, column 2, in paragraph (d)(1) of Sec. 2.145, the
last sentence is removed and added in its place is ``In inter partes
cases, the time for filing a notice of cross-appeal expires 14 days
after service of the notice of appeal or 63 days from the date of the
decision of the Trademark Trial and Appeal Board or the Director,
whichever is later.''
0
6. On page 69987, column 2, in paragraph (d)(3) of Sec. 2.145, this
final sentence is added ``In inter partes cases, the time for filing a
cross-action expires 14 days after service of the summons and complaint
or 63 days from the date of the decision of the Trademark Trial and
Appeal Board or the Director, whichever is later.''
Dated: December 6, 2016.
Michelle K. Lee,
Under Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office.
[FR Doc. 2016-29728 Filed 12-9-16; 8:45 am]
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