Boyle v. Barclays Global Investors, N.A.

50 F. App'x 986

Opinion

DYK, Circuit Judge.

ORDER

Barclays Global Investors, N.A. moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss John C. Boyle’s appeal. Boyle submits a document entitled “date of filing” that we treat as an opposition to Barclays’ motion to dismiss.

Barclays argues that Boyle’s appeal was not timely filed. Barclay states that the Trademark Trial and Appeal Board issued its decision on November 1, 2001, and that the Patent and Trademark Office (PTO) did not receive Boyle’s notice of appeal until January 7, 2002. Boyle responds that he mailed a notice of appeal to the court on November 30, 2001 and again on January 3, 2002.

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An appeal from a decision of the Board must be filed with the PTO within two months of the date of the Board’s decision. In this case, the notice of appeal was due by January 2, 2002. See 15 U.S.C. § 1071(a)(2); 37 C.F.R. § 2.145(b)(1) (“When an appeal is taken to the United States Court of Appeals for the Federal Circuit, the appellant shall give notice thereof in writing to the Commissioner, which notice shall be filed in the Patent and Trademark Office, within the time specified in paragraph (d) of this section.”). Paragraph (d) provides that the time for appeal is “[t]wo months from the date of the decision of the Trademark Trial and Appeal Board.” In this case, the PTO received Boyle’s notice of appeal on January 7, 2002, over two months after the date of the Board decision. Thus, Boyle’s appeal is untimely and must be dismissed.

Accordingly,

IT IS ORDERED THAT:

(1) Barclays’ motion to dismiss is granted.

(2) All pending motions are moot.

(3) Each side shall bear its own costs.

The court has no record of receiving a notice of appeal dated November 30, 2001. The court received the January 3, 2002 notice of appeal on January 4, 2002.