opposer in an opposition proceeding, the petitioner in a cancellation proceeding, and the applicant to register as a concurrent lawful user (or such applicant having the latest filing date), shall be deemed to be in the position of plaintiff, and the other parties to such proceedings shall be deemed to be in the position of defendants.

(c) The notice of opposition and the petition to cancel, and the answers thereto, correspond to complain and answer in court proceedings. Such pleadings as may be filed in interference and concurrent registration proceedings will be treated as complaints or affirmative defenses, depending upon the party filing, but the filing of a pleading in such proceedings shall not operate to change the position of the parties as set forth in the preceding paragraph.

(d) The assignment of testimony periods corresponds to setting a case for trial in court proceedings.

(e) The taking of depositions during the assigned testimony periods corresponds to the trial in court proceedings.

(f) Oral hearing corresponds to oral summation in court proceedings.

2.118 Undelivered office notices. When the notices sent by the Patent Office to any registrant are returned to the Office undelivered, or when one of the parties resides abroad and his representative in the United States is unknown, additional notice may be given by publication in the Official Gazette for such period of time as the Commissioner may direct.

2.119 Service of papers. (a) Every paper filed in the Patent Office in inter partes cases, including appeals, must be served upon the other parties as provided by rule 1.248 [Patent Rule 248] except the notices of interference (rule 2.93), the notice of opposition (rule 2.105), the petition for cancellation (rule 2.113) and the notices of a concurrent use proceeding (rule 2.99), which are mailed by the Patent Office. Proof of such service must be made before the paper will be considered by the Office. A statement signed by the attorney or agent, attached to or appearing on the original paper, when filed clearly stating the time and manner in which service was made will be accepted as prima facie proof of service.

(b) When service is made by mail, the date of mailing will be considered the date of service. Whenever a party is required to take some action within a prescribed period after the service of a paper upon him by another party and the paper is served by mail, five days shall be added to the prescribed period.

NOTE: Patent Rule 248 reads as follows:

1.248. SERVICE OF PAPERS; MANNER OF SERVICE. Service of papers must be on the attorney or agent of the party if there be such or on the party if there is no attorney or agent, and may be made in either of the following ways: (a) by delivering a copy of the paper to the person served; (b) by leaving a copy at the usual place of business of the person served with someone in his employ

ment; (c) when the person served has no usual place of business, by leaving a copy at his residence, with a member of his family over 14 years of age and of discretion; (d) transmission by first class or registered mail. Whenever it shall be satisfactorily shown to the Commissioner that none of the above modes of obtaining or serving the paper is practicable, service may be by notice published in the Official Gazette.

2.120 Discovery procedure. (a) Interrogatories. Any party to an opposition, interference, cancellation or concurrent use proceeding may, at any time after institution of the proceeding, but not later than thirty days prior to the date set upon which any testimony may be first taken, serve written interrogatories in duplicate on any adverse party. Within fifteen days after service of such interrogatories the party served, or an official thereof competent to testify as to the facts in its behalf, shall serve in duplicate on the interrogating party separate and full answers under oath: Provided, however, That within such fifteen-day period the party served may file in the Patent Office objections to such interrogatories, or any portion thereof, accompanied by the original of the interrogatories. Any brief in support of such objections shall be filed with the objections. Any brief in opposition to the objections must be filed within fifteen days after service thereof. Answers to interrogatories to which objections are made shall be deferred pending decision on the objections, at which time an answer date will be fixed if necessary.

(b) Scope of interrogatories. Interrogatories may relate to any unprivileged matter peculiarly within the knowledge and control of the interrogated party which may be relevant and material to the claim or defense of the interrogating party or reasonably calculated to lead to the discovery of admissible evidence in support of such claim or defense, except that interrogatories are limited to inquiries with respect to the following: (1) the issues of abandonment, nonuse, title or fraud; (2) the existence, description, nature, custody or location of any books, documents or other tangible things; (3) the identity and addresses of persons having knowledge of designated facts material to the issues; (4) a more particular description of the goods of the interrogated party; and (5) the first date of use which the interrogated party may claim for his mark.

(c) Effect of interrogatories and answers. (1) Interrogatories and answers thereto shall not be considered as a part of the record in the case unless the interrogating party files, before the close of his testimony period, a notice of reliance thereon, setting forth in said notice each interrogatory and the answer thereto to be relied upon. Such interrogatories and answers shall thereupon be considered as forming part of the record.

(2) Answers to interrogatories may not be introduced into the record by the interrogated party.

(d) Discovery depositions. (1) Any party to an opposition, inter

ference, cancellation or concurrent use proceeding may, within the time specified for serving interrogatories, take depositions for discovery of relevant and material evidence in support of the claim or defense of such party, provided that the interrogation of persons shall relate only to unprivileged matter peculiarly within the knowledge and control of the interrogated party and shall be limited to the inquiries permitted in interrogatories for discovery. Reasonable notice of taking such depositions, not less than ten days, shall be given to all adverse parties to the proceeding, and examination and crossexamination may proceed in accordance with Rule 43 (b) Federal Rules of Civil Procedure.

(2) Discovery depositions may be used in accordance with Rule 26 (d) (1), (2), and (4) (e) and (f) of the Federal Rules of Civil Procedure provided the party offering the deposition, or any part thereof, in evidence files before the close of his testimony period, a notice of reliance thereon, setting forth in said notice the specific portions to be relied upon. So far as admissible under the rules of evidence, the specified portions of such depositions shall be considered as record evidence.

(e) Requests for admissions. (1) Any party to an opposition, interference, cancellation or concurrent use proceeding may, within the time specified herein for serving interrogatories, serve in duplicate on any adverse party a written request for admission by the latter of the genuineness of any relevant documents described in and attached to the request (a photocopy may be attached provided the original is made available for inspection) or of the truth of any facts which are material and relevant to the issues and which are believed to be within the knowledge of both the party serving and the party served. Each of the matters in respect of which an admission is requested shall be deemed admitted unless, within fifteen days after service thereof, the party to whom the request is directed (i) serves upon the party requesting the admission a sworn statement denying specifically the matters in respect of which an admission is requested, or setting forth in detail the reasons why he cannot truthfully admit or deny those matters; or (ii) files written objections on the ground that some or all of the requested admissions are privileged or immaterial or irrelevant, or that the request is otherwise improper in whole or in part. When objections are filed, any brief in support thereof shall accompany them, and the original of the request for admissions shall be attached to the objections filed. Any brief in opposition to the objections shall be filed within fifteen days after service thereof.

(2) If objections to a part of the requests are made, the remainder of the requests shall be answered within the period provided. Compliance with the requests to which objections are made shall be deferred pending decision on the objections, at which time a date will be fixed

if necessary. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party deny only a part or a qualification of a matter of which an admission is requested, he shall specify so much of it as is true and deny only the remainder.

(f) Effect of admissions. (1) Any admission made by a party pursuant to such request is for the purpose of the pending action only and neither constitutes an admission by him for any other purpose nor may it be used against him in any other proceeding.

(2) Such admissions shall not be considered as a part of the record in the case unless one, or both, of the parties files, before the close of his testimony period, a notice of reliance thereon setting forth in said notice each request and admission relied upon. So far as admissible under the rules of evidence, such requests and admissions shall be considered as record evidence.

(g) Motion to produce documents, etc. for inspection and copying. Upon motion showing good cause therefor, an order may be entered requiring a party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated books, documents or other tangible things, not privileged, which constitute or contain material within the scope of inquiries permitted in interrogatories for discovery and which are in his possession, custody or control. The order shall specify a time for compliance therewith, and may prescribe such terms and conditions as may be just. (h) Refusal to make discovery. If any party or deponent fails or refuses to answer any proper question propounded by interrogatories, or fails or refuses to answer proper questions in taking discovery depositions or fails or refuses to comply with an order to produce and permit the inspection and copying or photographing of designated things, the Examiner of Interferences may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment as by default against that party, or take such other action as may be deemed appropriate.

2.121 Assignment of times for taking testimony. (a) Times will be assigned for the taking of testimony in behalf of each of the parties, and no testimony shall be taken except during the times assigned. If there be more than two parties to an interference, the times for taking testimony will be so arranged that each shall have an opportunity to prove his case against prior parties, to rebut their evidence, and to meet the evidence of junior parties.

(b) The times will ordinarily be assigned in the notices sent by the Patent Office in interferences and in concurrent use proceedings, and in a notice sent after the answers have been filed in cases of opposition and cancellation.

2.122 Matters in evidence. (a) The files of the applications or registrations specified in the declaration of interference or in the notice

in case of concurrent registration proceedings, of the application against which a notice of opposition is filed, and of the registration against which a petition for cancellation or an affirmative defense requesting cancellation is filed, form part of the record of the proceeding without any action by the parties, and may be referred to for any relevant and competent purpose.

(b) A registration of the opposer or petitioner pleaded in a notice of opposition or petition to cancel will be received in evidence and made part of the record if two copies of the printed registration accompany the notice or petition. The Office will take notice of the fact shown by its records of renewal of such registrations, the publication thereof under section 12 (c), the filing of affidavits under section 8, and the filing of affidavits under section 15, and such matters need not be proven by the parties. Notice will also be taken of a recorded assignment identified in a notice of opposition or petition to cancel or other pleading, and such pleaded recorded paper need not be otherwise proved by the parties.

2.123 Testimony in inter partes cases. (a) Testimony of witnesses in inter partes cases may be taken (1) by depositions on oral examination in accordance with rules 1.273 to 1.281, 1.283, 1.285, 1.286 of this chapter [Patent Rules 273 to 281, 283, 285, 286], or (2) by written questions as provided by rule 2.124 and by rule 1.284 [Patent Rule 284] of this chapter.

(b) If the parties so stipulate in writing, deposition may be taken before any person authorized to administer oaths, at any place, upon any notice, and in any manner, and when so taken may be used like other depositions. By agreement of the parties, the testimony of any witness or witnesses of any party, may be submitted in the form of an affidavit by such witness or witnesses. The parties may stipulate what a particular witness would testify to if called, or the facts in the case of any party may be stipulated.

(c) Printed publications such as books, periodicals and similar publications such as are available to the general public in libraries or are of general circulation, and official records, may be introduced as provided in rule 1.282 [Patent Rule 282] of this chapter. When a copy of an official record of the Patent Office is filed, it need not be a certified copy.

(d) Evidence not obtained and filed in compliance with these sections will not be considered.

(66 Stat. 795; 35 U. S. C. 23)

NOTE: Patent Rules 273 to 286 read as follows: 1.273. NOTICE OF EXAMINATION OF WITNESSES. Before the depositions of witnesses shall be taken by a party, due notice in writing shall be given to the opposing party or parties, as provided in rule 248, of the time when and place where the depositions will be taken, of the cause or matter in which they are to be used, and the name and address of each witness to be examined; if the name of a witness