Submitting Deposition Testimony as Evidence

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06.01.15

By Theresa Wang

During the testimony period in an opposition or cancellation proceeding, depositions may be used to present evidence in support of a party’s case, or to admit documents and exhibits that cannot be admitted via a notice of reliance.  TBMP 703.01(a); 37 C.F.R. sec. 2.123(a).  The offering party may choose to take testimony either by oral examination or upon written questions.  TBMP 703.01(b).  If a party serves notice of a testimonial deposition upon written questions for a witness who is present in the United States, the adverse party may file a motion with the TTAB for an order that the deposition be taken by oral examination.  Id.  The motion must be filed within 15 days of service of the notice of deposition, and be based upon cited good cause.  Id.  In contrast, testimonial depositions taken in foreign countries “shall” be taken upon written questions unless the TTAB orders otherwise.  Id.  The parties may also stipulate to the admission of testimony in the form of an affidavit or other writing.  Id.  Exhibits offered during the deposition are deemed to have been offered into evidence for purposes of the trial, without additional steps needed.  TBMP 703.01(h). 

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