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2309 Proposed Interference - 2300 Interference Proceedings
2309 Proposed Interference
Once an examiner has identified a potential interference, the examiner should take the following steps:
(A) Obtain all relevant files. Before an interference is declared, the examiner must have on hand all of the files to be included in the interference, including the application file for any involved patent. The examiner must also have all of the files for which the applicant (or patentee) will be accorded benefit. It is also useful to look at related applications and patents of the same inventors or assignees to ensure that all necessary issues are resolved.
(B) Confirm that the proposed involved claims are still active. The involved applications must not be abandoned. The patents must not be expired for, among other things, failure to pay a maintenance fee. Also check that the involved claims have not been disclaimed.
(C) If one of the involved files is a published application or a patent, check for compliance with 35 U.S.C. 135(b). A claim must have been first presented within one year of the date of publication for the published application or patent, unless a substantially similar claim was previously pending.
(D) Obtain a certified copy of any foreign benefit documents where necessary. 37 CFR 1.55(a).
(E) Discuss the proposed interference with an Interference Practice Specialist in the examiner's TC. The examiner should address all of the Interference Practice Specialist's suggestions on proposing the interference, including a suggestion that no interference be proposed.
(F) When the examiner has addressed the Interference Practice Specialist's suggestions, the Interference Practice Specialist will initiate a conference with the Board by sending a copy of the proposed involved claims, and usually a draft Form PTO-850, to the Board and by scheduling a conference.
(G) If the Board agrees that an interference may be proper, a conference will occur with a representative from the Board and an Interference Practice Specialist, and usually with the examiner as well. The purposes of the conference are
(1) to confirm the existence of and need for an interference,
(2) to ensure compliance with all procedural requisites, and
(3) to identify any facts that need to be found or conclusions that need to be reached on the record before the interference may be declared.
(H) Prepare the necessary fact-findings and conclusions for transmittal to the Board along with all of the involved and benefit files.
An applicant seeking to have an interference declared may facilitate the examiner's proposal of an interference by providing as much of the foregoing information as possible in a convenient form, e.g., providing certified copies of the foreign benefit documents and clean copies of the involved claims.
After the conclusion of the interference, the files will ordinarily be returned to an Interference Practice Specialist in the TC, who will also be able to assist the examiner in applying estoppels or recommendations that result from the interference.
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