Friday, April 01, 2005

Don't Mess With ESTTA: Unsigned Opposition Notice Blessed By TTAB In Citable Decision

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Massachusetts State House

The March 21, 2005 issue of the United States Patent Quarterly includes the TTAB's citable interlocutory decision in PPG Indus., Inc. v. Guardian Indus. Corp., 73 USPQ2d 1926 (TTAB 2005). Opposer PPG filed its opposition electronically via ESTTA, and included an electronic signature on the ESTTA form. However, the attached Notice of Opposition contained "no signature, electronic or otherwise." Guardian promptly filed a motion to dismiss for "failure to file a timely notice of opposition."

Guardian argued that the electronic form is merely a "transmittal" and not the notice of opposition itself. It pointed to the instructions on the USPTO website, which state that "[e]lectronically-filed papers filed as ESTTA attachments" must be either signed "in pen" and then scanned, or signed "by placing on the paper where it would normally be signed a symbol comprised of numbers and/or letters between two forward slashes." PPG did neither.

The Board panel (including Chief Judge Sams) ruled in favor of PPG (and in favor or our beloved ESTTA system):

"[b]ecause an ESTTA filing with attachments is considered to be a single submission, the electronic signature on the ESTTA filing form pertains to any attachments, whether or not the attachments are separately signed by the individual signing the ESTTA form."

Of course, as the Board was careful to point out, the signature on the ESTTA form does not serve as a signature for attachments that should properly by signed by someone else -- e.g., an affidavit or declaration. The Board also noted that the USPTO website instructions will be amended in due course to "better reflect the Board policy explained in this decision."

Guardian UltraWhite™ Glass

The TTABlog notes that BNA managed to publish this order in the USPQ within seven weeks of its issuance. Why, one wonders, did it take BNA six months to publish the Board's two citable decisions from September 2004: In re Candy Boutique Int'l, Inc. and In re White? See the previous TTABlog rant on this subject, here.

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Finally, one unappealing note: Two CAFC appeals recently discussed at the TTABlog have been dismissed. Perhaps the matters were settled, or maybe the appellants simply decided not to proceed with the appeals. The TTAB's decision in the CIRQUE DE FLAMBE case was discussed here , and in the EX FRAME case, here.

Text and State House photograph ©John L. Welch 2005. All Rights Reserved.


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