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2301.01 Preliminaries to an Interference - 2300 Interference Proceedings
2301.01 Preliminaries to an Interference
An interference is an expensive and time-consuming proceeding. Yet, it may be necessary to determine priority when two applicants, or an applicant and a patentee, are claiming the same patentable subject matter and their filing dates are so close together that there is a reasonable possibility that the first to file is not the first inventor. The fact that an application is a reissue application does not preclude it from being involved in an interference.
The greatest care must therefore be exercised both in the search for interfering applications and in determining whether an interference should be declared. Also the claims in recently issued patents, especially those used as references against the application claims, should be considered for possible interference.
The question of the propriety of proposing an interference in any given case is affected by so many factors that a discussion of all of them here is impracticable. Some circumstances which render an interference unnecessary are hereafter noted, but each instance must be carefully considered if serious errors are to be avoided.
In determining whether an interference is necessary, a claim should be given the broadest interpretation which it reasonably will support, bearing in mind the following general principles:
(A) The interpretation should not be strained;
(B) Express limitations in the claim should not be ignored nor should limitations be read therein;
(C) Before a claim (unless it is a patented claim) is considered as the basis for the count of an interference, the claim should be allowable and in good form. No pending claim which is indefinite, ambiguous or otherwise defective should be the basis for a count of an interference;
(D) A claim copied from a patent, if ambiguous, should be interpreted in the light of the patent in which it originated for purposes of determining whether a party has a right to copy a claim;
(E) An interference will not normally be instituted between cases which have the same inventive entity, or a common assignee. See 37 CFR 1.602(a). Such cases should be treated as set forth in MPEP § 804 et seq. Also see MPEP § 2302; and
(F) If doubts exist as to whether there is an interference, an interference should not be declared.
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