[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR2.146]

[Page 313-314]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
                         DEPARTMENT OF COMMERCE
 
PART 2--RULES OF PRACTICE IN TRADEMARK CASES--Table of Contents
 
Sec. 2.146  Petitions to the Commissioner.

    (a) Petition may be taken to the Commissioner:
    (1) From any repeated or final formal requirement of the examiner in 
the ex parte prosecution of an application if permitted by Sec. 2.63(b);
    (2) In any case for which the Act of 1946, or title 35 of the United 
States Code, or this part of title 37 of the Code of Federal Regulations 
specifies that the matter is to be determined directly or reviewed by 
the Commissioner;
    (3) To invoke the supervisory authority of the Commissioner in 
appropriate circumstances;
    (4) In any case not specifically defined and provided for by this 
part of title 37 of the Code of Federal Regulations;
    (5) In an extraordinary situation, when justice requires and no 
other party is injured thereby, to request a suspension or waiver of any 
requirement of the rules not being a requirement of the Act of 1946.
    (b) Questions of substance arising during the ex parte prosecution 
of applications, including, but not limited to, questions arising under 
sections 2, 3, 4, 5, 6 and 23 of the Act of 1946, are not considered to 
be appropriate subject matter for petitions to the Commissioner.
    (c) Every petition to the Commissioner shall include a statement of 
the

[[Page 314]]

facts relevant to the petition, the points to be reviewed, the action or 
relief that is requested, and the requisite fee (see Sec. 2.6). Any 
brief in support of the petition shall be embodied in or accompany the 
petition. When facts are to be proved in ex parte cases (as in a 
petition to revive an abandoned application), the proof in the form of 
affidavits or declarations in accordance with Sec. 2.20, and any 
exhibits, shall accompany the petition.
    (d) A petition must be filed within two months of the mailing date 
of the action from which relief is requested, unless a different 
deadline is specified elsewhere in this chapter.
    (e)(1) A petition from the grant or denial of a request for an 
extension of time to file a notice of opposition shall be filed within 
fifteen days from the date of mailing of the grant or denial of the 
request. A petition from the grant of a request shall be served on the 
attorney or other authorized representative of the potential opposer, if 
any, or on the potential opposer. A petition from the denial of a 
request shall be served on the attorney or other authorized 
representative of the applicant, if any, or on the applicant. Proof of 
service of the petition shall be made as provided by Sec. 2.119(a). The 
potential opposer or the applicant, as the case may be, may file a 
response within fifteen days from the date of service of the petition 
and shall serve a copy of the response on the petitioner, with proof of 
service as provided by Sec. 2.119(a). No further paper relating to the 
petition shall be filed.
    (2) A petition from an interlocutory order of the Trademark Trial 
and Appeal Board shall be filed within thirty days after the date of 
mailing of the order from which relief is requested. Any brief in 
response to the petition shall be filed, with any supporting exhibits, 
within fifteen days from the date of service of the petition. Petitions 
and responses to petitions, and any papers accompanying a petition or 
response, under this subsection shall be served on every adverse party 
pursuant to Sec. 2.119(a).
    (f) An oral hearing will not be held on a petition except when 
considered necessary by the Commissioner.
    (g) The mere filing of a petition to the Commissioner will not act 
as a stay in any appeal or inter partes proceeding that is pending 
before the Trademark Trial and Appeal Board nor stay the period for 
replying to an Office action in an application except when a stay is 
specifically requested and is granted or when Secs. 2.63(b) and 2.65 are 
applicable to an ex parte application.
    (h) Authority to act on petitions, or on any petition, may be 
delegated by the Commissioner.
    (i) Where a petitioner seeks to reactivate an application or 
registration that was abandoned or cancelled because papers were lost or 
mishandled, the Commissioner may deny the petition if the petitioner was 
not diligent in checking the status of the application or registration. 
To be considered diligent, the applicant must check the status of the 
application or registration within one year of the last filing or 
receipt of a notice from the Office for which further action by the 
Office is expected.
    (j) If the Commissioner denies a petition, the petitioner may 
request reconsideration, if the petitioner:
    (1) Files the request within two months of the mailing date of the 
decision denying the petition; and
    (2) Pays a second petition fee under Sec. 2.6.

[48 FR 23142, May 23, 1983; 48 FR 27226, June 14, 1983, as amended at 63 
FR 48100, Sept. 9, 1998; 64 FR 48924, Sept. 8, 1999]