Tuesday, December 30, 2008

Precedential No. 55: TTAB Denies Cross-Motions for Summary Judgment Because Briefs Exceeded Page Limit

Under Rule 2.127(a), a brief on a motion may not exceed 25 pages in length, including table of contents, index of cases, description of record, statement of the issues, recitation of the facts, argument, and summary. The parties to this cancellation proceeding violated that rule in their respective summary judgment motions, and so the Board tossed out the motions. Cooper Technologies Company v. Denier Electric Co., Inc., 89 USPQ2d 1478 (TTAB 2008) [precedential].

Respondent Denier Electric's summary judgment motion was met with Petitioner Cooper's combined opposition and cross-motion for summary judgment [the issue being mere descriptiveness of the mark ROUGH-IN READY for electrical switches and receptacles]. Unfortunately, Denier's brief was 30 pages long! Petitioner Cooper's brief was 27 pages! Although neither party objected, the Board turned out the lights, noting that "the page limitation for briefs on motions is intended to prevent the filing of unduly long briefs and consequent unnecessary burdens on the Board. The page limitation on briefs cannot be waived by action, inaction or consent of the parties."

The 25-page limit still applied even though Petitioner's brief was a combined opposition and summary judgment cross-motion: "one cannot subvert the limit by filing both a brief in opposition and a separate brief in support of a cross-motion, when both address the same issue."

The Board dismissed both summary judgment motions without prejudice (but in a footnote pointed out several substantive flaws in the motions).

Text Copyright John L. Welch 2008.


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