Supplemental Expert Reports Cannot Be Submitted Via a Notice of Reliance

The TTAB recently clarified its procedures for making evidence of record through notices of reliance. After the close of its testimony period, Applicant sought to reopen the period in order to file an additional notice of reliance. The exhibits attached to this notice of reliance included a “Supplemental Expert Report” and the documents referenced in the report. The Board excluded the Supplemental Expert Report because it was not proper subject matter for introduction via a notice of reliance. The Board then considered the possibility that the report was admissible because the parties had so stipulated. The report was not admissible on this basis because the parties’ stipulations covered the expert’s initial report, but did not address the admissibility of any additional expert reports, affidavits, or declaration testimony. The report also did not qualify as proper supplementation under the Federal Rules of Civil Procedure because, by Applicant’s own admission, it contained additional opinions designed to rebut Opposer’s expert report, rather than correct any inaccuracies in Applicant’s initial report. The documents referenced in the “Supplemental Expert Report” were admissible because they were printed publications and constituted proper subject matter for a notice of reliance. The Board struck the “Supplemental Expert Report” and reminded the Applicant that it could have avoided this problem altogether had it simply taken the expert’s deposition during its testimony period.