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|Top of Notices (499) December 25, 2012||US PATENT AND TRADEMARK OFFICE||Print This Notice 1385 CNOG 3754|
|Trademark Trial and Appeal Board||Referenced Items (490, 491, 492, 493, 494, 495, 496, 497, 498, 499)|
(499) Interlocutory Decisions by the Trademark Trial and Appeal Board Only final decisions of the Trademark Trial and Appeal Board are subject to judicial review. Some confusion may exist in inter partes trademark proceedings as to whether certain decisions of the Board are "final" fort purpose of judicial review. An example where confusion may arise is a case in which (1) an opposition is filed, (2) applicant counterclaims for cancellation of a registration relied upon by an opposer, and (3) the Board renders a dicision (generally on summary judgment) on the opposition, but sets the counterclaim for trial. Under these circumstances, there is no final order of the Board, because a decision has not been entered on the counterclaim. The party losing the opposition may feel compelled to seek judicial review within two months of the Board's decision to "prserve" its rights. But such an appeal appears to be premature under Copeland's Enterprises, Inc. v. CNV, Inc. 887 F.2d 1065, 12 USPQ2d 1563 (fed. Cir. 1989) (in banc). Copeland's is not the only appeal which has been dismissed because it was taken from an interlocutory decision of the Board. See Cortex Corporation v. W.L. Gore & Associates, Inc., No. 91-1016 (Fed. Cir. January 14, 1991)(unpublished), and Kellogg Co. v. Pack'em Enterprises, Inc., No. 90-1336 (Fed. Cir. Sept. 27, 1990) (unpublished). In an effort to (1) minimize disruption in proceeding pending before the Board, (2) eliminate unnecessary appeals and filing of civil actions, only to have the appeal or civil action dismissed as premature, and (3) provide some certainty to parties and their attorneys as to when an appeal is timely, the Board will, when resolving a merits issue prior to final judgement, generally indicate that it has entered an "interlocutory" order in the proceeding and further set the time for seeking judicial review of the "interlocutory" order to expire two months from the date a final order is entered in the proceeding. Jan. 22, 1991 HARRY F. MANBECK, Jr. Assistant Secretary and Commissioner of Patents and Trademarks [1123 TMOG 36]