Tuesday, January 23, 2007

TTAB Issues Notice Re Citation of Its Decisions, Both Precedential and Non-Precedential

Today's Official Gazette contains a significant Notice from the TTAB regarding citation of its decisions. Just as we suspected (see TTABlog Note here and posting here), the Board is making all of its decisions citable, but only decisions marked "precedential" will have binding effect on the Board. Non-precedential decisions may be cited for whatever persuasive value they may have. The Notice is forth in full below:

United States Patent and Trademark Office
OG Notices: 23 January 2007

Citation of Opinions to the
Trademark Trial and Appeal Board

It has been the policy of the Trademark Trial and Appeal Board (TTAB) that TTAB opinions not designated as precedential should not be cited to the TTAB and, if cited, are disregarded. E.g., General Mills Inc. v. Health Valley Foods, 24 USPQ2d 1270, 1275 n.9 (TTAB 1992). The TTAB is changing its policy with respect to the citation of opinions not designated as precedential. Accordingly, the Board will henceforth permit citation to any TTAB disposition as follows:

. The TTAB will continue its current practice of designating all final decisions as either precedential or not precedential. Unless specifically designated as precedential, an order on a motion should be considered not precedential.

. The TTAB will continue its practice of considering precedential decisions as binding upon the TTAB.

. A decision designated as not precedential is not binding upon the TTAB but may be cited for whatever persuasive value it might have.

. Citation to all TTAB decisions should be to the United States Patent Quarterly, if the decision appears therein; otherwise, to a USPTO public electronic database. If a non-precedential decision does not appear in the United States Patent Quarterly or the USPTO's public electronic databases, the citing party should append a copy of the decision to the motion or brief in which the decision is cited.

. Decisions of other tribunals may be cited to the extent allowed and for the purposes permitted by the tribunal that issued the decision.

The TTAB will continue to post all its final decisions at:
http://des.uspto.gov/Foia/TTABReadingRoom.jsp. The files of TTAB proceedings are available at: http://ttabvue.uspto.gov/ttabvue/.

In due course, the TTAB will make revisions to the Trademark Trial and Appeal Board Manual of Procedure (TBMP) consistent with this notice.

December 27, 2006

Chief Administrative Trademark Judge

TTABlog comment: A hat tip to MH who, after bringing this to my attention, asks the very pertinent question: is this notice retroactive? I.e., are pre-2007 cases that were deemed not citable, now citable "for what they're worth"? or are they still not citable at all?

Update: MH posed the question to Chief Judge Sams, who confirmed that decisions previously deemed not citable may now be cited for whatever persuasive value they may have.


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