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2341 Unpatentability Discovered - 2300 Interference Proceedings
2341 Unpatentability Discovered
37 CFR 1.641 Unpatentability discovered by administrative patent judge.
(a) During the pendency of an interference, if the administrative patent judge becomes aware of a reason why a claim designated to correspond to a count may not be patentable, the administrative patent judge may enter an order notifying the parties of the reason and set a time within which each party may present its views, including any argument and any supporting evidence, and, in the case of the party whose claim may be unpatentable, any appropriate preliminary motions under §§ 1.633(c), (d) and (h).
(b) If a party timely files a preliminary motion in response to the order of the administrative patent judge, any opponent may file an opposition ( § 1.638(a)). If an opponent files an opposition, the party may reply ( § 1.638(b)).
(c) After considering any timely filed views, including any timely filed preliminary motions under § 1.633, oppositions and replies, the administrative patent judge shall decide how the interference shall proceed.
If the examiner, while the interference is pending, discovers a reference or other reason which he or she believes would render one or more of the parties' claims corresponding to the count(s) unpatentable, the reference or other reason should be brought to the attention of the administrative patent judge in charge of the interference. The administrative patent judge will determine what action, if any, should be taken in the interference.
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