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Author Topic: ** Serve Subpeona on 3rd Party in TTAB Proceeding while Representing Myself **  (Read 1561 times)

Kaitlin

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Thanks, you too.
Before you go, however, I believe I have the proper code section for you to cite to the district court clerk. It's 35 U.S.C. sec. 24 (also referenced in your quote from TBMP sec.404).  This is what gives you the authority to ask and her the obligation to issue:

Quote
35 U.S.C. 24 Subpoenas, witnesses.

The clerk of any United States court for the district wherein testimony is to be taken for use in any contested case in the Patent and Trademark Office, shall, upon the application of any party thereto, issue a subpoena for any witness residing or being within such district, commanding him to appear and testify before an officer in such district authorized to take depositions and affidavits, at the time and place stated in the subpoena. The provisions of the Federal Rules of Civil Procedure relating to the attendance of witnesses and to the production of documents and things shall apply to contested cases in the Patent and Trademark Office.

Every witness subpoenaed and in attendance shall be allowed the fees and traveling expenses allowed to witnesses attending the United States district courts.

A judge of a court whose clerk issued a subpoena may enforce obedience to the process or punish disobedience as in other like cases, on proof that a witness, served with such subpoena, neglected or refused to appear or to testify. No witness shall be deemed guilty of contempt for disobeying such subpoena unless his fees and traveling expenses in going to, and returning from, and one day's attendance at the place of examination, are paid or tendered him at the time of the service of the subpoena; nor for refusing to disclose any secret matter except upon appropriate order of the court which issued the subpoena.

(Amended Jan. 2, 1975, Public Law 93-596, sec. 1, 88 Stat. 1949.)
from http://www.bitlaw.com/source/35usc/24.html

I presume but am not sure that bitlaw has the latest update on the statute, but here's the government PDF for it which should be current: http://www.gpo.gov/fdsys/pkg/USCODE-2009-title35/pdf/USCODE-2009-title35-partI-chap2-sec24.pdf

Now, there may be some local rules that come into play--possibly even requiring the notice of deposition to be certified?, but her office should be able to provide you with those rules or at least give you a link to find them online.
« Last Edit: 09-23-11 at 07:27 pm by Kaitlin »
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This post is an off-the-cuff musing and should not be misconstrued as legal advice. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. Proper legal advice requires full disclosure of facts-not appropriate to a public forum-and attorney research time and effort which has not been expended here.

Kaitlin

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Incidentally, I tried searching the case cited in the footnote in Gilson and came up empty, i.e. using public internet pages the only hits I got related to other aspects of the case.
A search of "ttab certifying deposition notice" was more fruitful.

Apparently this can come up in the trial phase.  (I'm presuming you're in discovery now.)

The reference to certification for testimonial depositions is: 

A notice of oral deposition need not be filed with the Board. [Note 5.] However, if a certified
copy of the notice of deposition is, for some reason,* required for use before a federal district
court, the notice of deposition must be filed with the Board for purposes of certification. See
TBMP § 122 and TBMP § 703.01(f)(2).

http://www.uspto.gov/trademarks/process/appeal/Chapter_700.pdf
[Asterix added.]

The counterpart for discovery is at 404.07, but I don't see a parallel reference to certification there.
http://www.uspto.gov/trademarks/process/appeal/Chapter_400.pdf

[*I don't know what that "for some reason" would be, but wonder if local rules or recalcitrant clerks might be what they have in mind. :) ]
« Last Edit: 09-23-11 at 07:17 pm by Kaitlin »
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This post is an off-the-cuff musing and should not be misconstrued as legal advice. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. Proper legal advice requires full disclosure of facts-not appropriate to a public forum-and attorney research time and effort which has not been expended here.

Kaitlin

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Here's atlanta's local rules, incidentally.  I don't see anything in a quick glance which looks relevant to pro se litigants getting subpoenas issued:
http://www.gand.uscourts.gov/pdf/NDGARulesCV.pdf

...
(You can tell it's late, since I'm not letting this rest!)
Quote
LOL, Kaitlin, I read the TTAB procedural manual from cover to cover and I know it inside and out. I also consulted with 2 IP attorneys and all of them had never ran into this situations.
  They probably hadn't ever run into this particular clerk of court! :)

Joking aside, re procedural rules: there's more than the TTAB manual to consider.  For litigation you also need familiarity with the federal rules of civil procedure relating to discovery and the federal rules of evidence, since those are incorporated into the TTAB rules by reference only.  Those are the rules of the game in litigation.

There may be publications which summarize some of these rules for laymen.  If you can find one relating to litigation before the TTAB that would be best, of course.  But anything that addresses handling discovery and general rules of evidence would be helpful. 

You've probably already done this, but if not you may want to find a local law library and get familiar with not only it's IP section but also with where they keep Moore's Federal Practice, a many-volumed looseleaf treatise which is the go-to book for federal procedure. Moore's also treats the rules of evidence.  Most of the discovery rules fall between rules 26 and 33 or thereabouts, as best I recall.
« Last Edit: 09-23-11 at 08:20 pm by Kaitlin »
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This post is an off-the-cuff musing and should not be misconstrued as legal advice. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. Proper legal advice requires full disclosure of facts-not appropriate to a public forum-and attorney research time and effort which has not been expended here.
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