Missing a deadline at the Trademark Trial and Appeal Board (TTAB) doesn’t always spell the end of your case—but it can if you don’t respond strategically. Fortunately, the TTAB allows late filings under certain conditions, thanks to the concept of excusable neglect. But this standard isn’t applied loosely. Whether you’re the opposer or the applicant, knowing when this doctrine applies and how the Board evaluates it can make or break your position in an inter partes proceeding.

This article explores the TTAB’s framework for evaluating missed deadlines, provides guidance on how to frame requests to reopen time, and offers TTAB tips to help you stay on track and out of trouble.

Understanding Excusable Neglect in TTAB Proceedings

The term “excusable neglect” refers to a legitimate reason why a party failed to meet a deadline. It’s not the same as mere oversight or procrastination. At the TTAB, excusable neglect becomes relevant when a party misses a deadline and must ask the Board to accept a late filing, whether it’s an answer, a discovery response, or even a trial brief.

This standard applies when the period for filing has already expired. If the deadline hasn’t passed, the party only needs to show “good cause.” But once time runs out, the TTAB won’t consider extending the deadline unless the party shows the delay was excusable.

How the TTAB Evaluates Excusable Neglect

The TTAB assesses excusable neglect using a case-by-case analysis. Rather than relying on strict rules, the Board weighs multiple factors to determine whether to grant an extension or reopen a deadline. These typically include the length of the delay, the reason for the failure to act, the impact on the opposing party, and whether the party seeking relief acted in good faith.

One of the most important considerations is the explanation for the missed deadline. A vague excuse like “I forgot” or “I was busy” will not satisfy the Board. Instead, the party must provide a detailed and credible account of what happened and why the mistake occurred.

For instance, a brief delay caused by a sudden illness or a genuine technical error might be forgiven, especially if the party moved quickly to correct the issue. But if the delay resulted from poor calendaring, neglecting to monitor TTABVUE, or ignoring reminders, the Board is unlikely to be sympathetic.

Why the Reason Behind the Delay Matters Most

Although multiple elements are considered, the TTAB gives particular weight to the cause of the delay. If the reason is within the party’s control, such as failing to docket a deadline or missing an email, the Board is less inclined to grant relief. That’s because the TTAB expects parties to manage their cases with diligence and care, especially given the public availability of all filings through TTABVUE.

It’s not enough to demonstrate that the delay wasn’t intentional. The Board will ask whether a reasonably careful attorney or party could have avoided the mistake. If the answer is yes, the neglect may not be excusable.

Timing and Prejudice to the Other Side

Another key issue is whether the delay has caused prejudice to the opposing party. This doesn’t refer to minor inconvenience or frustration—it means a real impairment, such as the loss of evidence, the disappearance of a witness, or significant disruption of the case timeline.

If the delay is short and doesn’t materially affect the other party’s ability to respond, the Board may weigh this in favor of granting the extension. However, the longer the delay, the harder it becomes to argue that no harm was done.

It also matters how soon the party acted to correct the mistake. Promptly filing a motion to reopen a deadline is far more persuasive than waiting weeks to address the issue.

Good Faith Is Expected, Not Optional

While the Board assumes parties are acting in good faith unless there’s evidence to the contrary, your behavior still matters. If there’s any indication that the delay was a strategic maneuver or an attempt to buy time unfairly, the Board may deny the motion outright.

Practitioners should also be cautious about developing a pattern of delays. Even if each missed deadline is explained, repeated requests for leniency can undermine credibility and suggest a lack of control over the case.

How to Avoid Needing an Excusable Neglect Argument

Although the TTAB does allow for excusable neglect in limited situations, relying on it is always a risky move. The best practice is to avoid getting into that situation in the first place. Here are several ways to reduce the risk of missed deadlines and the need for emergency filings:

Use multiple deadline tracking systems—don’t depend on a single calendar. Designate a person or team to monitor TTABVUE regularly for updates. Avoid waiting until the last minute to file critical documents, as ESTTA outages or formatting issues can derail a submission. If a deadline becomes unmanageable, always file a motion to extend before it expires—this requires only a showing of good cause, not excusable neglect.

Most importantly, document everything. If circumstances out of your control interfere with your ability to meet a deadline, having a clear paper trail makes it easier to prove your case to the Board.

How to Frame Your Motion if You Miss a Deadline

If you do find yourself needing to file a motion based on excusable neglect, take the time to craft a thorough and candid explanation. Address each of the Board’s considerations directly. Provide specific facts about why the delay occurred, how long it lasted, and what you did to fix it. If the opposing party has not suffered any prejudice, say so—and explain why. Attach declarations if necessary to back up your claims.

Don’t try to deflect responsibility. The TTAB appreciates honesty and professionalism. A well-reasoned and well-supported motion is much more likely to succeed than a defensive or vague filing.

Conclusion: Use TTAB Tips to Stay Ahead of Deadlines

The Trademark Trial and Appeal Board does offer grace in limited cases where deadlines are missed, but practitioners should never treat excusable neglect as a fallback strategy. The standard is designed to ensure fairness—not to reward poor planning or inattention.

By following smart TTAB tips, maintaining a strict calendaring system, and acting quickly when issues arise, you can avoid needing to rely on excusable neglect—and focus instead on winning your case.