Intellectual Property Law

TTAB's Accelerated Case Resolution Procedures Probably Should Be Required

By Michael Atkins

Trademark Trial and Appeal Board Chief Judge David Sams writes in today’s INTA Bulletin (password required) about the availability of TTAB’s new Accelerated Case Resolution (ACR) procedures.

What is ACR? It’s the “TTAB initiative that provides parties to Board inter partes proceedings the opportunity to stipulate to final determination on the merits of cases at the pre-trial phase without the time or expense of a full trial.”

I’ve never taken advantage of ACR — at least I’ve never thought of it as ACR — but it sounds like a good deal. In my view, the regular TTAB procedure can be way too time-consuming and hence expensive.

Judge Sams suggests that “ACR is most suitable for cases in which the issues are relatively straightforward and the evidentiary record is not extensive. For example, an opposition or cancellation action brought on the grounds of priority and likelihood of confusion where priority is not at issue and the parties do not rely upon extensive testimony and documentary evidence would be an excellent candidate for accelerated case resolution.”

ACR can include: “Abbreviating the length of the discovery, testimony and briefing periods”; “Limiting the number and types of discovery and/or agreeing to limit the number of witnesses and/or streamline the method of introduction of evidence — for example, stipulating to facts and introduction of evidence by affidavit”; and “Permitting the TTAB to resolve issues of fact at summary judgment and treat the parties’ summary judgment motion papers and evidence as the final record and briefs on the merits of the case.”

That last idea — treating summary judgment evidence as the final record — is particularly attractive. I’ve gone through the wasteful trial period after the denial of cross-motions for summary judgment. No surprise: it felt wasteful.

Judge Sams says that parties can stipulate to ACR at any time before the trial phase, and may do so by telephone conference with the interlocutory attorney or by filing a stipulation.

The only problem in all of this is you need to get the opposing party’s agreement. It’d be a lot easier if TTAB rules required the parties to be efficient in their prosecution and defense. Leaving it up to agreement leaves room for mischief. That said, the availability of ACR is a nice step in the right direction.

Full post as published by Seattle Trademark Lawyer on June 16, 2009 (boomark / email).