TMEP 1715.06: Recourse After Denial of Letter of Protest

October 2017 Edition of the TMEP

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1715.06    Recourse After Denial of Letter of Protest

If the Deputy Commissioner denies a letter of protest, the protestor may pursue remedies otherwise available, such as an opposition proceeding, if the protestor complies with all relevant requirements and deadlines.  Filing a letter of protest does not stay or extend the time for filing a notice of opposition. TMEP §1715.03(b).

The protestor may not file a request for reconsideration of the denial of the letter of protest with the Deputy Commissioner, because the request would unduly delay final disposition of the application. In re BPJ Enter's. Ltd., 7 USPQ2d 1375, 1378 (Comm'r Pats. 1988).  However, the protester may petition the Director to review the Deputy Commissioner’s decision to deny the letter of protest under 37 C.F.R. §2.146(a)(3).

The Deputy Commissioner has broad discretion in determining whether to accept a letter of protest.  In any petition to review the denial of a letter of protest, the Deputy Commissioner’s action will be reversed only where there has been a clear error or abuse of this broad discretion. In re Pohn, 3 USPQ2d 1700, 1702 (Comm’r Pats. 1987).

The protestor may not present additional evidence with the petition.  On petition, the Director will consider only the evidence that was properly before the Deputy Commissioner in acting on the letter of protest. BPJ Enter's., 7 USPQ2d at 1378.