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2303 Interference Between Applications - 2300 Interference Proceedings
2303 Interference Between Applications
37 CFR 1.603 Interference between applications; subject matter of the interference.
Before an interference is declared between two or more applications, the examiner must be of the opinion that there is interfering subject matter claimed in the applications which is patentable to each applicant subject to a judgment in the interference. The interfering subject matter shall be defined by one or more counts. Each application must contain, or be amended to contain, at least one claim that is patentable over the prior art and corresponds to each count. All claims in the applications which define the same patentable invention as a count shall be designated to correspond to the count.
Where two or more applications are found to be claiming the same patentable invention, they may be put in interference, dependent on the status of the respective applications and the difference between their filing dates. One of the applications should be in condition for allowance. Unusual circumstances may justify an exception to this if the approval of the TC Director is obtained.
Interferences will not be declared between pending applications if there is a difference of more than 3 months in the effective filing dates of the oldest and the next oldest applications, in the case of inventions of a simple character, or a difference of more than 6 months in the effective filing dates of the applications in other cases, except in exceptional situations, as determined and approved by the TC Director. One such exceptional situation would be where one application has the earliest effective filing date based on foreign priority and the other application has the earliest effective United States filing date. If an interference is to be declared, all applications having the interfering subject matter should be identified.
Before proposing an interference, it is essential that the examiner make certain that each of the applications contains a claim to the same patentable invention (as defined in 37 CFR 1.601(n)) and that each of those claims is clearly readable upon the disclosure of that party and allowable in its application. See Rowe v. Dror, 112 F.3d 473, 479, 42 USPQ2d 1550, 1554 (Fed. Cir. 1997).
If the applications each contain at least one claim drawn to the same patentable invention ( 37 CFR 1.601(n)), the examiner proceeds to propose the interference; otherwise, one or more claims must be suggested to some or all of the parties. See MPEP § 2305. Since two applications do not have to contain an identical claim in order to be placed in interference, the suggestion of a claim should not normally be necessary.
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