Interference Proceedings

An interference is a contest under

pre-AIA 35 U.S.C. 135(a)

between an

application and either another application or a patent. An interference is declared to

assist the Director of the United States Patent and Trademark Office in determining

priority, that is, which party first invented the commonly claimed invention within the

meaning of

pre-AIA 35

U.S.C. 102(g)(1)

. See

MPEP § 2301.03

. Once an interference has

been suggested under

37

CFR 41.202

, the examiner refers the suggested interference to the

Board. An administrative patent judge declares the interference, which is then administered

at the Board. A panel of Board members enters final judgment on questions of priority and

patentability arising in an interference.

Once the interference is declared, the examiner generally will not treat

the application again until the interference has been terminated. Occasionally, however,

the Board may refer a matter to the examiner or may consult with the examiner on an issue.

Given the very tight deadlines in an interference, any action on a consultation or referral

from the Board must occur with special dispatch.

The application returns to the examiner after the interference has been

terminated. Depending on the nature of the judgment in the case, the examiner may need to

take further action in the application. For instance, if there are remaining allowable

claims, the application may need to be passed to issue. The Board may have entered a

recommendation for further action by the examiner in the case. If the applicant has lost an

issue in the interference, the applicant may be barred from taking action in the

application or any subsequent application that would be inconsistent with that loss.

Given the infrequency, cost, and complexity of interferences and

derivation proceedings, it is important for the examiner to consult immediately with an

Interference Practice Specialist (IPS) in the examiner’s Technology Center, see

MPEP §

2302

, once a possible interference is identified

from taking action in the

application or any subsequent application that would be inconsistent with that loss.

Given the infrequency, cost, and complexity of interferences and

derivation proceedings, it is important for the examiner to consult immediately with an

Interference Practice Specialist (IPS) in the examiner’s Technology Center, see

MPEP §

2302

, once a possible interference is identified. It is also

important to complete examination before the possible interference is referred to the

Board. See

MPEP §

2303

. See

MPEP § 2310

et seq.

for discussion of derivation proceedings.