estta tracking number: estta1059739 06/03/2020

Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov

ESTTA Tracking number: ESTTA1059739

Filing date: 06/03/2020

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Proceeding 92071814

Party DefendantAbundance Productions, LLC

CorrespondenceAddress

WILLIAM D KELLENBLOCK45 LEGAL730 17TH ST SUITE , #810DENVER, CO 80202UNITED [email protected]

Submission Opposition/Response to Motion

Filer's Name William D Kellen

Filer's email [email protected]

Signature /William D Kellen/

Date 06/03/2020

Attachments Response to MSJ and Exhibits.pdf(2358414 bytes )

http://estta.uspto.gov

1

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE

TRADEMARK TRIAL AND APPEAL BOARD

)

)

Miss United States of America LLC )

DBA United States of America Pageants, )

Petitioner, )

) Cancellation No. 92071814

v. )

)

Abundance Productions, LLC, )

Respondent. )

)

RESPONDENT’S RESPONSE TO MOTION FOR SUMMARY JUDGMENT

I. BACKGROUND

Petitioner instituted this cancellation number 92071814 against Respondent on July 22,

2019. The Board’s initial Notice set a discovery closure date of March 30, 2020. (2 TTABVUE).

On September 5, 2019 the Board granted a Stipulated Motion Extending Time to Answer, which

reset the discovery closure date to April 29, 2020. (5 TTABVUE).

On March 20, 2020 Petitioner served its “First Set of Requests for Admission to

Registrant” (“RFAs”) on Respondent, along with separate Interrogatories and Requests for

Production. (Exhibit A, Declaration of William D. Kellen, ¶ 2). The initial deadline for

Respondent to respond to the RFAs was April 20, 2020.

Also on March 20, 2020, Petitioner’s counsel initially contacted Respondent’s counsel to

request a mutual “90 day extension of all upcoming trial dates.” (Exhibit B, E-mails of Counsel

for the Parties, p. 1). On March 23, 2020 Respondent’s counsel responded to Petitioner’s counsel

regarding the proposed 90-day extension, stating that Respondent would agree to such an

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extension. (Ex. B, p. 2). In e-mails dated March 23, 2020, referenced in the attached declaration,

and attached as an exhibit to this Response, the following exchange takes place:

Counsel for Petitioner: “…Please tell me if you will agree to a 90 day extension

of all trial dates.”

Counsel for Respondent: “I will agree to a 90 day extension of all trial dates,

including the upcoming discovery deadlines.”

(Ex. B, p. 3-4).

The next e-mail in the sequence sent by Petitioner’s counsel (dated March 25, 2020)

states “I have been busy this morning. I will file the stipulated 90 day extension right now and

send you a service copy.” (Ex. B, p. 6).

On March 25, 2020 Petitioner filed a Consent Motion to Extend which requested an

extension of all trial dates for 90 days. (9 TTABVUE). One of the grounds stated in this Motion

was “[issues] arising from the present Coronavirus quarantine have impacted the ability of the

parties to conduct discovery at this time.” (9 TTABVUE 1). The Board granted this extension on

April 1, 2020, setting a new discovery closure date of July 28, 2020. (10 TTABVUE).

Respondent understood its deadline to respond to RFAs was similarly extended to July 19, 2020.

On May 4, 2020 Petitioner filed its Motion for Summary Judgment. This Response

follows.

II. LEGAL STANDARD

This proceeding before the Board is governed by the Federal Rules of Civil Procedure. 37

CFR § 2.116(a).

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A. Timeframe to Respond to Requests for Admission

After being served a Request for Admission, a party generally has 30 days within which

to serve an answer or objection, or the matter is deemed admitted. 37 CFR § 2.120(a)(3), see also

F.R.C.P. 36(a)(3). However, “[t]he time to respond may be extended upon stipulation of the

parties…” 37 CFR § 2.120(a)(3). The rule only requires Board approval if the parties wish to

stipulate to rescheduling of the discovery period itself; Board approval is not required to

reschedule deadlines for responses to discovery that fall within the discovery period. 37 CFR §

2.120(a)(3).

B. Grounds upon Which to Extend RFA Response Time

Generally, a failure to respond to a Request for Admission results in the Request being

deemed admitted. F.R.C.P. 36(a)(3). However, the Federal Rules of Civil Procedure provide

means by which to extend the response time, or to allow for withdrawal of an admission.

1. Excusable Neglect

The Federal Rules of Civil Procedure, which govern cancellation proceedings before the

Board, allow an extension of any deadline “if [a] party failed to act because of excusable

neglect.” F.R.C.P. 6(b)(1)(B). In Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582 (TTAB

1997), the Board adopted the standard for determining whether a delay is caused by “excusable

neglect” that was promulgated by the United States Supreme Court in Pioneer Investment

Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993). That

standard has been articulated as:

“at bottom an equitable one, taking account of all relevant circumstances

surrounding the party's omission. These include … (1) the danger of prejudice to

the [nonmovant], (2) the length of the delay and its potential impact on judicial

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proceedings, (3) the reason for the delay, including whether it was within the

reasonable control of the movant, and (4) whether the movant acted in good

faith.”

Old Nutfield Brewing Co., Ltd. v. Hudson Valley Brewing Co., Inc., 65 USPQ2d 1701 (TTAB

2002), citing Pioneer, 507 U.S. at 395. When analyzing the factors above, “the Board has found

the third Pioneer factor, namely, the reason for the delay, and whether it was within the

reasonable control of the movant, to be of paramount importance.” Old Nutfield, 65 USPQ2d

1701, citing Pumpkin, 43 USPQ2d at 1586, n. 7).”

2. F.R.C.P. 36(b)

Additionally, the Board may permit withdrawal of an admission “if it would promote the

presentation of the merits of the action and if the court is not persuaded that it would prejudice

the requesting party in maintaining or defending the action on the merits.” F.R.C.P. 36(b).

Rule 36(b) provides relief when failure to timely respond to requests for admission would

otherwise lead to a harsh result. Hobie Designs Inc. v. Fred Hayman Beverly Hills Inc., 14

U.S.P.Q.2d 2064 (TTAB 1990). Whether or not to withdraw an admission under Rule 36(b) is

left to the discretion of the Board; however, the Board should emphasize resolving the

Proceeding on its merits. Gerald David Giersch, Jr. and Benjamin J. Giersch v. Scripps

Networks, Inc., 85 USPQ2d 1306 (TTAB 2007).

The test for withdrawal is a two-prong analysis. The first prong is satisfied if withdrawal

of the admissions facilitates the development of the case in reaching the truth. Giersch, 85

USPQ2d 1306. The admissions should be withdrawn if doing so better serves the presentation of

the merits of the case or assists the trier of fact in reaching the truth. Id. The second prong is

satisfied if the party who obtained the admissions is not prejudiced. Id.

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III. ARGUMENT

Petitioner’s Motion for Summary Judgement should be denied because it relies entirely

on Respondent’s supposed failure to respond to RFAs, but the deadline by which Respondent

may reply to the RFAs has not expired because the parties stipulated to extend the deadline to

respond for 90 days at the same time the parties stipulated to extend all trial deadlines on the

case. The result is that the deadline for Respondent to respond to the RFAs is currently July 19,

2020, a date that has not yet passed. In the alternative, if the Board determines that Respondent

did fail to respond to the RFAs within the applicable deadline, such failure constitutes excusable

neglect and the time to respond should be enlarged, or Respondent should be allowed to

withdraw the admissions and submit responses to the RFAs under F.R.C.P. 36(b).

A. The Parties Stipulated to a 90-day Extension of Time to Respond to Requests for

Admission

Attached to this Response is Exhibit A, a declaration of Respondent’s counsel regarding

matters related to this Response. Also attached is a lengthy e-mail correspondence between

counsel for the parties that occurred between March 20, 2020 and March 25, 2020. (Ex. A, ¶ 3),

(Ex. B). Respondent’s counsel has stated in his declaration that this e-mail chain is full and

complete, and contains all of the e-mails exchanged between counsel for the parties during the

above-referenced date range. (Ex. A, ¶ 6). These correspondences demonstrate that the parties

had stipulated to a 90-day extension of the deadline to respond to RFAs, which extended the new

deadline to respond to the RFAs to July 19, 2020, which has not yet passed.

1. Timeline of Discussions Related to Stipulated Extension

The e-mail correspondence between counsel for the parties makes clear that when

Respondent’s counsel agreed to stipulate to a 90-day extension, it was done in reliance on the

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fact that “upcoming discovery deadlines,” including the deadline by which Respondent was to

serve responses to the RFAs, would also be extended. (Ex. A, ¶ 8-9), (Ex. B, p. 4). First,

Petitioner’s counsel suggested a 90-day extension on or about March 20, 2020. (Ex. B, p. 1).

Respondent’s counsel initially responded on March 20, 2020 acknowledging the extension

request. (Ex. B, p. 1). Counsel for Respondent responded further on March 23, 2020 informally

agreeing to the extension, inquiring about details related to the extension, and offering to be

available by phone to discuss particulars. (Ex. B, p. 2).

Counsel for Petitioner responded on March 23, 2020 stating in part, “…Please tell me if

you will agree to a 90 day extension of all trial dates.” (Ex. B, p. 3). Respondent understood this

to be an offer of formalization of the terms that would govern the extension. Counsel for

Respondent responded on March 23, 2020 stating, “I will agree to a 90 day extension of all trial

dates, including the upcoming discovery deadlines.” (Ex. B, p. 4). In simple contract terms, this

represented a counter-offer in the negotiation of the stipulated extension.

After the March 23, 2020 email sent by counsel for Respondent mentioning “discovery

deadlines,” counsel for Petitioner did not immediately reply. Counsel for Respondent reached out

again on March 25, 2020 stating in part “I haven’t seen anything filed yet, and I just wanted to

confirm that we have agreed to extend deadlines…” (Ex. B, p. 5). In response to this query,

counsel for Petitioner responded “I have been busy this morning. I will file a stipulated 90 day

extension right now and send you a service copy.” (Ex. B, p. 6). Counsel for Petitioner

proceeded to file a Consent Motion for extension of time on March 25, 2020. (9 TTABVUE).

2. Substance of the Extension Agreement

Counsel for Respondent’s use of the phrase “discovery deadlines” in his March 23, 2020

email was a specific reference to the multiple discovery deadlines for RFAs, Requests for

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Production, and Interrogatories. (Ex. A, ¶ 8). Prior to the filing of the Consent Motion to Extend

on March 25, 2020 the close of discovery was set for April 29, 2020. (5 TTABVUE). The initial

deadline for Respondent to respond to the Requests for Admission, Requests for Production, and

Interrogatories of Petitioner was April 20, 2020. The simple fact that Counsel for Respondent, in

his March 23, 2020 e-mail, used the plural “deadlines” demonstrates that more was contemplated

than an extension of the discovery period alone. (Ex. B, p. 4).

Through its counsel, Respondent agreed to the stipulated extension only on the condition

that the extension include “upcoming discovery deadlines.” (Ex. A, ¶ 8-9). By filing the Consent

Motion to Extend on March 25, 2020 without objecting to extension of “upcoming discovery

deadlines,” Petitioner implicitly agreed to that term as a part of the stipulation. If Petitioner did

not agree to that term at that time, then there was no meeting of the minds regarding the

stipulated extension, and Petitioner did not have valid consent of the parties to file its Consent

Motion to Extend.

3. Text of the Consent Motion to Extend

The only relevant deadline that was explicitly listed in the Consent Motion to Extend was

the Discovery Closure date. Even when the parties jointly agree to extend the discovery period,

the extension of the period is not valid unless the stipulation is approved by the Board. 37 CFR §

2.120(a)(3). However, Board approval is not required for stipulated extensions of time to respond

to specific discovery requests, unless the specific extension would result in a deadline outside the

discovery period. Id. Therefore, it was not significant that Petitioner’s Consent Motion to Extend

failed to mention outstanding discovery request deadlines. Respondent had a reasonable

understanding that mention of the specific discovery response deadlines had been omitted from

the Consent Motion to Extend because Board approval for such extension was unnecessary.

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Indeed, the 90-day extension resulted in a new discovery closure date of July 28, 2020 and a new

RFA response deadline of July 19, 2020, well within the discovery period.

B. Alternatively, Respondent’s Failure to Respond to RFAs Constitutes Excusable

Neglect, and Respondent Should be Allowed to Withdraw the Associated

Admissions

Even should the Board determine that Respondent has failed to respond to the RFAs

within the required time period, Petitioner’s Motion for Summary Judgment should be denied

because (1) Respondent should be granted an extension of time to answer the RFAs under

F.R.C.P. 6(b)(1)(B) because the failure to respond was due to excusable neglect; or (2) because

Respondent should be allowed to withdraw the relevant admissions and subsequently file

responses to the RFAs under F.R.C.P. 36(b).

1. Excusable Neglect

In determining whether a deadline was missed due to excusable neglect under F.R.C.P.

6(b)(1)(B), the Board should analyze (1) the danger of prejudice to the non-moving party, (2) the

length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay,

including whether it was within the reasonable control of the moving party, and (4) whether the

moving party acted in good faith. Old Nutfield, 65 USPQ2d 1701, citing Pioneer, 507 U.S. at

395. The third Pioneer factor is typically considered the most important. Old Nutfield, 65

USPQ2d 1701, citing Pumpkin, 43 USPQ2d at 1586, n. 7).

a. Danger of prejudice to Petitioner

Allowing Respondent to withdraw the admissions and submit responses to the RFAs

would not prejudice the Petitioner. All matters related to this proceeding have been stayed for 90

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days, and the 90-day extension has not yet lapsed. The discovery period is still ongoing.

Petitioner has cited no evidence or suggestion of prejudice in its Motion for Summary Judgment.

b. Length of Delay and Impact on Proceedings

The RFAs were initially presumed to be due on April 20, 2020. However, the parties

stipulated, and the Board approved, a blanket 90-day extension of all trial-related dates in this

proceeding. That 90-day extension has not yet run its course. The discovery period is currently

scheduled to remain open until July 28, 2020. Allowing Respondent to withdraw its admissions

and submit responses to the RFAs would not delay the proceedings in any way.

c. Reason for Delay and Whether Respondent Controlled the Delay

Should the Board determine that Respondent has failed to respond to the RFAs by the

deadline, then the delay was caused by a good-faith misunderstanding on the part of Respondent.

Respondent genuinely believed that the parties had negotiated a stipulated extension of all

deadlines in the case, including discovery response deadlines. Grounds for the Consent Motion

to Extend filed on March 25, 2020 included “[issues] arising from the present Coronavirus

quarantine have impacted the ability of the parties to conduct discovery at this time.” (9

TTABVUE 1). The email correspondence makes clear that the impacts of the coronavirus

pandemic were a key consideration in the discussion of the 90-day extension. (Ex. B, p. 2, 5).

d. Whether the Respondent acted in good-faith

As discussed above, Respondent has acted in good-faith throughout this process. Should

the Board determine that there was not a stipulation to extend the RFA response deadlines, then

the e-mail correspondence still makes clear that Respondent was operating under a good-faith

assumption that the RFA timeline had been extended. Counsel for Petitioner never reached out to

counsel for Respondent to inquire about the failure to produce RFA responses, and the issue was

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never raised until Petitioner filed its Motion for Summary Judgment. (Ex. A, ¶ 7). Had the matter

been raised, Respondent could have taken action to remedy the misunderstanding and any

subsequent delay.

2. Pioneer Factors Conclusion

The Board should look at the totality of the circumstances when making a determination

about excusable neglect, with special focus on the Pioneer factors. Here, the totality of the

evidence demonstrates that there is no danger of prejudice to the Petitioner, there will be no

significant impact on the proceedings due to the 90-day extension placed on all other deadlines

in this proceeding as-of March 25, 2020, the delay was caused by a genuine misunderstanding

between the Parties, and the Respondent has acted in the utmost good-faith throughout this

proceeding.

3. Alternatively, the Board should Allow Withdrawal of the Admissions under

F.R.C.P. 36(b)

The Board may permit withdrawal of an admission “if it would promote the presentation

of the merits of the action and if the court is not persuaded that it would prejudice the requesting

party in maintaining or defending the action on the merits.” F.R.C.P. 36(b). This would have the

effect of allowing Respondent to then file a response to the RFAs.

The two-prong test related to F.R.C.P. 36(b) admission withdrawal is 1) whether

upholding the admissions would practically eliminate any presentation of the merits of the case,

and 2) whether the party who obtained the admissions will be prejudiced. Giersch, 85 USPQ2d

1306.

Here, Petitioner has based its entire Motion for Summary Judgment on Respondent’s

failure to respond to the Requests for Admission. Upholding the admissions would entirely

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eliminate any presentation of the merits of this case. Should the Board determine that

Respondent has failed to respond to the RFAs in the appropriate timeframe, then allowing

Respondent to withdraw those implied admissions and submit responses to the RFAs would

clearly facilitate reaching the truth of the merits of this case.

Furthermore, Petitioner will not be prejudiced by this, because the proceeding has

recently been under a 90-day extension of time, which runs from March 25th through June 23rd.

The discovery period runs through July 28, 2020. There is ample time for each party to develop

and present its case.

Wherefore, for the reasons stated above, Respondent requests that the Petitioner’s

MOTION FOR SUMMERY JUDGMENT be DENIED.

Respectfully submitted this 3rd day of June, 2020.

/s/ William D. Kellen

William D. Kellen

BLOCK45 LEGAL LLC

730 17th St. Suite #810

Denver, CO 80202

E-mail: [email protected]

Phone: (303) 353-4531

Attorney for Opposer Abundance Productions, LLC

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing RESPONDENT’S RESPONSE TO MOTION FOR SUMMARY JUDGMENT was served by e-mail to the following parties:

Thomas D. Foster

TDFoster – Intellectual Property Law

11622 El Camino Real Ste. 100

San Diego, CA 92130

[email protected]

Date: June 3, 2020 By: /William Kellen/

Block45 Legal

730 17th ST. Suite #810

Denver, CO 80202

(303) 353-4531

1

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE

TRADEMARK TRIAL AND APPEAL BOARD

)

)

Miss United States of America LLC )

DBA United States of America Pageants, )

Petitioner, )

) Cancellation No. 92071814

v. )

)

Abundance Productions, LLC, )

Respondent. )

)

DECLARATION OF WILLIAM D. KELLEN

I, William D. Kellen, declare that the following is true.

1) I am counsel for Respondent, Abundance Productions, LLC, in the above-captioned proceeding.

2) On March 20, 2020 Respondent was served with Petitioner’s First Set of Requests for Admission,

Petitioner’s First Set of Requests for Production, and Petitioner’s First Set of Interrogatories.

3) Between March 20, 2020 and March 25, 2020, I conducted email correspondence with Thomas

D. Foster, counsel for Petitioner in the above-captioned matter, regarding a stipulated stay of these

proceedings.

4) A true and correct copy of my correspondence with Thomas D. Foster is attached to this

declaration. The e-mails are presented in chronological order.

5) “Ron Rubin,” mentioned in the attached e-mail correspondence, was previously counsel for

Respondent, Abundance Productions, LLC.

6) The nine (9) pages of e-mail correspondence attached to this declaration represents the entirety of

e-mail communications between my law firm and counsel for Petitioner between March 20, 2020 and

Petitioner Exhibit A

2

March 25, 2020. There was no communication between my law firm and counsel for Petitioner by any

other means during that timeframe.

7) After the e-mail of March 25, 2020 wherein counsel for Petitioner forwarded a copy of the filing

receipt for the Consent Motion to Extend, my law firm received no further communication by any means

from counsel for Petitioner until being served with Petitioner’s Motion for Summary Judgment on May

4, 2020.

8) Regarding my e-mail sent March 23, 2020 and stating in part “I will agree to a 90 day extension

of all trial dates, including the upcoming discovery deadlines,” it was my specific intention in using the

term “discovery deadlines” to reference the deadlines to respond to requests for admission, requests for

production, and interrogatories filed by Petitioner.

9) When Petitioner filed the Consent Motion to Extend on March 25, 2020 it was my understanding

that Petitioner had agreed to the extension of deadline to respond to requests for admission, requests for

production, and interrogatories.

/s/ William D. Kellen

William D. Kellen

BLOCK45 LEGAL LLC

730 17th St. Suite #810

Denver, CO 80202

E-mail: [email protected]

Phone: (303) 353-4531

Attorney for Opposer Abundance Productions, LLC

Petitioner Exhibit A

William Kellen <[email protected]>

USAP v. Abundance, Cancellation 92071814William Kellen <[email protected]> Fri, Mar 20, 2020 at 2:59 PMTo: [email protected], Ron Rubin <[email protected]>

Mr. Foster,

Please find attached the Entry of appearance and substitution of counsel that I have filed today in this cancellation proceeding.

Ron Rubin forwarded to me your discovery requests of today's date, as well as your suggestion of a 90-day extension of all deadlines. I'm inclined to think this is a good idea, but I'd like to speak to my client about the delay. I will get back to you on that as soon as possible.

Regards,

William D. KellenSenior Litigation CounselBlock45 Legal(720) 360-1607

CONFIDENTIALITY NOTICE. Electronic mail transmission and any attachments contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please immediately inform me by "reply" email and delete the message. Thank you.

Notice of Appearance and Request to Substitute.pdf75K

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Petitioner Exhibit B


USAP v. Abundance, Cancellation 92071814William Kellen <[email protected]> Mon, Mar 23, 2020 at 10:58 AMTo: [email protected]

Mr. Foster,

I'm following up on your e-mail to Ron Rubin last week, mentioning a possible 90-day stay of proceedings in the USAP v. Abundance cancellation proceeding.

My client is agreeable to that delay/extension. It is still unclear exactly how this virus situation will continue to develop, and this would allow all parties to focus on the things necessary during the short term. I also think it allows sufficient time for you and I to discuss matters, and whether there is any possible resolution to these claims that may be reached.

Would you like to prepare a stipulated filing related to the extension? Let me know how we can best handle this aspect. I'd also be available to get on a call this afternoon or tomorrow if that becomes necessary.

Regards,



[Quoted text hidden]

2



USAP v. Abundance, Cancellation [email protected] <[email protected]> Mon, Mar 23, 2020 at 11:06 AMTo: William Kellen <[email protected]>

Dear Mr. Kellen,

You can certainly call me Thomas. I will be happy to prepare and file the stipulated filing for the extension after which we can discuss matters and possibly reach a resolution to this case. Please tell me if you will agree to a 90 day extension of all trial dates.

Cordially,

Thomas D. Foster, Esq.

Registered Patent Attorney

Registration No.: 44,686

TDFoster - Intellectual Property Law

11622 El Camino Real, Suite 100

San Diego, CA 92130

ph: 858.922.2170

fax: 888.757.3817

[email protected]

CONFIDENTIAL/PRIVILEGED COMMUNICATION

This message contains information which may be confidential and privileged communication between client and attorney. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in this message. If you have received this message in error, please advise the sender by reply e-mail at [email protected] and delete this message. Thank you very much.


3



USAP v. Abundance, Cancellation 92071814William Kellen <[email protected]> Mon, Mar 23, 2020 at 11:37 AMTo: [email protected]

Thomas,

I will agree to a 90 day extension of all trial dates, including the upcoming discovery deadlines.

Please feel free to call me "Will." I look forward to speaking with you after the extension gets filed and accepted.

Regards,




4



USAP v. Abundance, Cancellation 92071814William Kellen <[email protected]> Wed, Mar 25, 2020 at 3:25 PMTo: [email protected]

Thomas,

I haven't seen anything filed yet, and I just wanted to confirm that we have agreed to extend deadlines, including expert disclosures and the close of discovery, for 90 days. The expert deadline is only a few days away, so I'd like to get clarity there.

My office is closed under local government order, and beginning tomorrow at 8am I will be under a "Stay at Home" order. I hope you are faring well through all of this.

Regards,




5



USAP v. Abundance, Cancellation [email protected] <[email protected]> Wed, Mar 25, 2020 at 3:37 PMTo: William Kellen <[email protected]>

Dear William,

I have been busy this morning. I will file the stipulated 90 day extension right now and send you a service copy.


6



USAP v. Abundance, Cancellation 92071814William Kellen <[email protected]> Wed, Mar 25, 2020 at 3:43 PMTo: [email protected]

Thank you very much, I appreciate it.

Regards,




7



USAP v. Abundance, Cancellation [email protected] <[email protected]> Wed, Mar 25, 2020 at 3:45 PMTo: William Kellen <[email protected]>

Dear William,

Please find attached hereto the filing receipt for the stipulated 90 day extension of all trial dates. Assuming the Board will grant our motion, the trial dates should be reset as follows:

Expert Disclosures Due 06/28/2020

Discovery Closes 07/28/2020

Plaintiff's Pretrial Disclosures Due 09/11/2020

Plaintiff's 30-day Trial Period Ends 10/26/2020

Defendant's Pretrial Disclosures Due 11/10/2020

Defendant's 30-day Trial Period Ends 12/25/2020

Plaintiff's Rebuttal Disclosures Due 01/09/2021

Plaintiff's 15-day Rebuttal Period Ends 02/08/2021

Plaintiff's Opening Brief Due 04/09/2021

Defendant's Brief Due 05/09/2021

Plaintiff's Reply Brief Due 05/24/2021

Request for Oral Hearing (optional) Due 06/03/2021

Cordially,

Thomas D. Foster, Esq.

Registered Patent Attorney

Registration No.: 44,686

TDFoster - Intellectual Property Law

11622 El Camino Real, Suite 100

8


San Diego, CA 92130

ph: 858.922.2170

fax: 888.757.3817

[email protected]

CONFIDENTIAL/PRIVILEGED COMMUNICATION

This message contains information which may be confidential and privileged communication between client and attorney. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in this message. If you have received this message in error, please advise the sender by reply e-mail at [email protected] and delete this message. Thank you very much.

From: William Kellen <[email protected]> Sent: Wednesday, March 25, 2020 2:25 PM



6955.006-00 20200325 90 DAY EXT REQ FILING RECEIPT.jpg251K

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estta tracking number: estta1059739 06/03/2020

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