Precedential No. 38: TTAB Excuses Failure To Plead Compulsory Counterclaim In Answer

Here's another 2017 precedential interlocutory ruling that slipped under the TTABlog radar. In this consolidated opposition and cancellation proceeding, the Board considered whether an answer may be amended to add an omitted counterclaim "when justice so requires," or whether under FRCP 15 a compulsory counterclaim must be pleaded in the original answer (unless based on newly discovered grounds). The Board ruled that the failure to plead a compulsory counterclaim in an original answer is not a per se bar to its later assertion in the same proceeding. Jive Software, Inc. v. Jive Communications, Inc., Opposition No. 91218826 (parent) (December 20, 2017) [precedential].

This proceeding began with an opposition filed on October 14, 2014. Applicant Jive Communications filed its answer on November 5, 2014, without any counterclaim. Beginning on December 12, 2014, the parties sought and obtained numerous suspensions of the opposition in view of settlement negotiations,