2302 Consult an Interference Practice Specialist
|
(d) Requirement to show priority under 35 U.S.C. 102(g).
(1) When an applicant has an earliest constructive reduction to practice that is later than the apparent earliest constructive reduction to practice for a patent or published application claiming interfering subject matter, the applicant must show why it would prevail on priority.
(2) If an applicant fails to show priority under paragraph (d)(1) of this section, an administrative patent judge may nevertheless declare an interference to place the applicant under an order to show cause why judgment should not be entered against the applicant on priority. New evidence in support of priority will not be admitted except on a showing of good cause. The Board may authorize the filing of motions to redefine the interfering subject matter or to change the benefit accorded to the parties.
-it is no longer appropriate to suspend an application on the chance that an interference might ultimately result
•One party not in condition for allowance
-a first application will usually be granted a Notice of Allowance and become a patent (in spite of a second application with interfering claims) when all of the following conditions are met:
- the first application and a second application claim the same patentable invention; and
- a first application is in condition for allowance; and
- the second application is not in condition for allowance
-in the instance above, an interference may be appropriate when examination of the second application is complete
- this would result in an application vs. patent interference
•Both parties in condition for allowance
-Within six months
-when both parties are in condition for allowance and the earliest effective filing dates are within six months, an interference may be suggested
- this would result in an application vs. application interference
-if the earliest filed application is available as a reference against the later filed application, then a rejection should be made against the later filed application
- in this case the earlier filed application should be allowed and issued
-Not within six months
-when both parties are in condition for allowance and the earliest effective filing dates of the applications are not within six months of each other, an interference should not be called
- in this case the application with the earliest effective filing date shall issue
- the application with the later filing date will be rejected on the basis of the earlier filed application
- the only way an interference can be suggested is if the later filed application can make the showing required by 37 CFR 41.202(d) (this rule states that the applicant must show why his or her later filed application would prevail on priority)
