CAFC Partially Remands "HERE COMES THE JUDGE" Appeal to TTAB for Production of AEO Materials

Well, here's a bit of "inside baseball." You may recall that, about a year ago, Michael P. Chisena was on the losing end of three oppositions brought by the Major League Baseball Players Association (MBPLA) and New York Yankee outfielder Aaron Judge. [TTABlogged here]. Chisena, now appearing pro se, appealed to the CAFC. He then filed a motion for access to Attorneys-Eyes-Only material that he was not allowed to see when he was represented by counsel before the Board. The court granted a limited remand so that the Board may consider the issue but limited the potential production to materials cited in the trial briefs at the TTAB and/or in the TTAB's decision. Michael P. Chisena v. Major League Baseball Players Association, Aaron Judge, Appeal No. 2023-2073 (Fed. Cir., Nov. 8, 2023).

 

In its remand order, the CAFC stated: "the court finds it appropriate to remand to allow the Board to consider whether the protective order should be modified to allow Mr. Chisena access to appellees’ AEO-designated material referenced in either the trial briefs or the Board’s final decision to ensure he has a fair opportunity to prosecute his case on appeal."

On April 10, 2024, the Board issued an order [here] requiring the parties to "meet and confer in good faith to (i) identify the AEO-designated materials to which the parties’ trial briefs or the Board’s final decision referred, and (ii) determine which of those AEO-designated materials, if any, can be redesignated as 'CONFIDENTIAL' by agreement of the parties."

"Prior to their meeting, the parties must review Section 412.01(a) of the TBMP and authorities discussed therein, regarding the proper designation of confidential matter. The parties are reminded that the Board’s standard protective order provides for two tiers of protected information:" CONFIDENTIAL (shielded from public access) and CONFIDENTIAL - ATTORNEYS EYES ONLY (shielded from public access, restricted from any access by the parties, and available for review by outside counsel for the parties and, subject to the provisions of paragraphs 4 and 5 (of the Board's Standard Protective Order), by independent experts or consultants for the parties).

Over the seventy days following the meet-and-confer, the parties must report seriatim to the Board with regard to their agreements and disagreements regarding what should be produced. Chisena may also challenge the AEO designations made by the opposers. The Board suggested that Chisena may want to enlist a lawyer to help him in this process.

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TTABlogger comment: Suppose Chisena had not been represented by counsel before the TTAB. Would the Board have required the opposers to similarity produce AEO materials that had not been provided to Chisena?

Text Copyright John L. Welch 2024.