This week, the United States Patent and Trademark Office (USPTO) introduced a new pilot program for holding Final Pretrial Conferences (FPC) in certain inter partes disputes (i.e., oppositions and cancellations) before the Trademark Trial and Appeal Board (TTAB). The goal of the pilot, according to the USPTO, is “to save time and resources of parties and the TTAB, and to foster the effective and efficient presentation of evidence.”

The pilot program is the latest step in the TTAB’s recent efforts to streamline inter partes cases and reduce the administrative burden of cases with expansive or unruly records. The TTAB has taken inspiration from the process used in many federal district courts, where both an early Initial Pretrial Conference (IPC) and a Final Pretrial Conference (FPC) are held. The IPC Order governs discovery, motion practice procedures, and a possible trial date. At the end of discovery, the parties propose a joint FPC Order and attend the FPC. The FPC Order sets the trial date and governs many trial procedures. Until now, the TTAB has used a truncated version of the IPC, including its Institution Notice and Trial Order, and the mandatory settlement and discovery planning conference under Trademark Rule 2.120(a), 37 C.F.R. § 2.120(a), but has had no equivalent to the FPC.

The pilot program was designed by TTAB Administrative Trademark Judges (ATJs) and Interlocutory Attorneys (IAs) to facilitate the trial process. The program will require parties to provide more pre-trial information than was previously required by TTAB pretrial disclosure rules.  For example, parties will now have to provide lists of Notice of Reliance evidence and lists of all testimony/exhibits planned for trial use. The parties will also be required to state all their objections to the adverse parties’ expected evidence, with limited exceptions. The parties will also be required to consider and adopt stipulations pertaining to both the facts and evidence.

The pilot program is not intended for every inter partes case that goes to trial. The TTAB intends to focus on cases likely to create large, disorganized, or unwieldy records. The initial attention will be on cases in which there are a large number of claims or defenses that may be unwarranted or unlikely to be pursued successfully at trial, or where the parties or counsel are unfamiliar with TTAB practice and could benefit from assistance to help them focus their claims, defenses, or factual and legal issues, or to understand the rules. In short, the FPC pilot program is intended to help manage trials more efficiently. For especially contentious and complex disputes, parties should expect to participate in the pilot. TTAB litigants in these cases will need to be prepared with their trial evidence and objections going into the FPC.