Monday, July 28, 2008

Appellant Petitions Commissioner for New Hearing, Claims PTO Argument Was Inaudible and Unintelligible

Well here's another document for your form file: a Petition to the Commissioner for a do-over of the oral argument in an ex parte appeal. Counsel for Applicants Diane M. and Richard G. Hyatt appeared on May 21, 2008, for the oral argument in their appeal from a Section 2(d) refusal to register. In re Hyatt, Serial No. 76611740. One week later, counsel filed a Petition to the Commissioner requesting a new hearing, alleging that "[t]he entirety of the oral argument presented by the Examining Attorney was inaudible and unintelligible."

Applicants contend that they were denied their constitutional right to due process. Applicants' counsel, at the end of the PTO's argument, informed the Board that the Examining Attorney's presentation was "inaudible and unintelligible and, in point of fact, could not be heard or understood." The Board did not respond.

"The unexpected failure of the presiding judge to either notice the extremely low volume of the counsel's delivery, or to request the advocate to increase the volume, effectively denies the Appellant such aspects of Appellant's constitutionally guaranteed procedural due process rights as the customary right "to present a rebuttal argument" to the oral argument delivered by the Examiner to the Trademark Trial and Appeal Board ..., thereby effectively negating the constitutionally guaranteed substantive due process right of Appellant granted under 37 C.F.R. Section 2.142(e)(3) and common law."

In their petition, Applicants request that the oral argument be rescheduled, before a different panel of the Board.

TTABlog comment: Now if Applicants' counsel had appeared by way of a video conference, one might understand how a problem like this could arise. But Applicants' counsel appeared in person at the hearing, so what the heck is going on here?

Text Copyright John L. Welch 2008.


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