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Precedential No. 8: You Can't Move for Summary Judgment Until After Serving Initial Disclosures, Says TTAB

Here's a primer on how not to file for summary judgment. Opposer Qualcomm's motion was ill-timed, procedurally deficient, and substantively lacking. As a result, it FLOed right down the TTAB drain. Qualcomm Incorporated v. FLO Corporation, 93 USPQ2d 1768 (February 25, 2010) [precedential].Bad Timing: Under Rule 2.127(e)(1): "A party may not file a motion for summary judgment until the party has made its initial disclosures, except for a motion asserting claim or issue preclusion or lack of jurisdiction by the Trademark Trial and Appeal Board." Qualcomm's motion did not fall within the exception. Applicant Flo pointed out in its opposition brief that Qualcomm did not serve initial disclosures, but Flo did not expressly object on that ground. The Board held that this requirement "cannot be waived...continue to full post

Full post as published by The TTABlog on March 05, 2010 (boomark / email).