Interference proceeding

From Wikipedia, the free encyclopedia

An interference proceeding, also known as priority contest, is an inter partes proceeding to determine the priority issues of multiple patent applications. It is a unique patent law concept of the United States. Unlike most other country that adopts the first to file system, the first to invent system of the U.S. allows a party who failed to file a patent application on time to challenge the inventorship against another party with a granted or pending patent if certain requirements are met.

1 Definition
2 Parties
3 Presumptions
4 External links

[edit] Definition

The interference proceeding is an administrative proceeding conducted by a panel of Administrative Patent Judges (administrative law judges sitting on the Board of Patent Appeals and Interferences) of the United States Patent and Trademark Office (USPTO) to determine which applicant is not entitled to the patent if both claim the same invention in:

two or more pending patent applications, or
at least one pending patent application and at least one patent issued within a year of the pending application's filing date.

A panel, composed of judges on the Board of Patent Appeals and Interferences, a quasi-judicial body in the USPTO, hears interference contests. Its final judgment designating one party in an interference contest as the first inventor is called priority award or simply award. Appeals from this tribunal may be heard before either the United States Court of Appeals for the Federal Circuit or the United States District Court for the District of Columbia. 35 U.S.C. § 144 35 U.S.C. § 145

[edit] Parties

At least two parties are involved in an interference proceeding. The inventor or applicant who filed patent application earlier is called "senior party", the rest of the inventors or applicants are "junior parties." Both parties can be referred as "contestants", but currently, it is more likely used to describe the junior party.

Senior Party: Merely being the first to file the application does not grant a party legal protection. It only counted as prima facie evidence that he/she is the first inventor. It can also file a "motion to dissolve interference" to request the dismissal of challenges to its priority.
Junior Party: Party or parties other than the senior party. A junior party bears the burden of proving that he or she is the first inventor. The proceeding's administrator takes certain factors, say the invention's conception date and the inventor's diligence in reducing the invention to practice, into account. Before 1960s, a junior party were frequently called "interferant".

[edit] Presumptions

Presumptions are stated in 37 C.F.R. 41.207(a):

(1) Order of invention. Parties are presumed to have invented interfering subject matter in the order of the dates of their accorded benefit for each count. If two parties are accorded the benefit of the same earliest date of constructive reduction to practice, then neither party is entitled to a presumption of priority with respect to the other such party.

(2) Evidentiary standard. Priority may be proved by a preponderance of the evidence except a party must prove priority by clear and convincing evidence if the date of its earliest constructive reduction to practice is after the issue date of an involved patent or the publication date under 35 U.S.C. 122(b) of an involved application or patent.