An interference proceeding, also known as a priority contest, is an inter partes proceeding to determine the priority issues of multiple

patent application A patent application is a request pending at a patent office for the grant of a patent for an invention described in the patent specification and a set of one or more claims stated in a formal document, including necessary official forms and re ...

s. It is a proceeding unique to the

patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...

law of the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

. Unlike in most other countries, which have long had a first-to-file system, until the enactment of the Leahy-Smith America Invents Act (AIA) in 2011, the United States operated under a

first-to-invent First to file (FTF) and first to invent (FTI) are legal concepts that define who has the right to the grant of a patent for an invention. The first-to-file system is used in all countries. There is an important difference between the strict natu ...

. The interference proceeding determines which of several patent applications had been made by the first

inventor An invention is a unique or novel device, method, composition, idea or process. An invention may be an improvement upon a machine, product, or process for increasing efficiency or lowering cost. It may also be an entirely new concept. If an ...

. The AIA switched the US to a first-to-file regime effective March 16, 2013, and interferences apply only to patent applications with an effective filing date prior to that change.

Definition

An interference proceeding is an

administrative proceeding An administrative proceeding is a ''non-judicial'' determination of fault or wrongdoing and may include, in some cases, penalties of various forms. They are typically conducted by government or military institutions. In a military setting, a "Cap ...

conducted by a panel of administrative patent judges (

administrative law judges An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates claims or disputes involving administrative law. ALJs can administer oaths, take testimony, rule on questions of ...

sitting on the

Board of Patent Appeals and Interferences The Board of Patent Appeals and Interferences (BPAI) was an administrative law body of the United States Patent and Trademark Office (USPTO) which decided issues of patentability. Under the America Invents Act, the BPAI was replaced with the Pa ...

) of the

United States Patent and Trademark Office The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that serves as the national patent office and trademark registration authority for the United States. The USPTO's headquarters are in Alex ...

(USPTO) to determine which applicant is not entitled to the patent if both claimed the same

invention An invention is a unique or novel device, method, composition, idea or process. An invention may be an improvement upon a machine, product, or process for increasing efficiency or lowering cost. It may also be an entirely new concept. If an ...

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

, a quasi-judicial body in the USPTO, hears an interference contest. Its final judgment adjudicating one party as an earlier inventor is called a priority award, or simply an award.

Appeal In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...

s from this tribunal are heard before either the

United States Court of Appeals for the Federal Circuit The United States Court of Appeals for the Federal Circuit (in case citations, Fed. Cir. or C.A.F.C.) is a United States court of appeals that has special appellate jurisdiction over certain types of specialized cases in the U.S. federal cou ...

or the

United States District Court for the District of Columbia The United States District Court for the District of Columbia (in case citations, D.D.C.) is a federal district court in the District of Columbia. It also occasionally handles (jointly with the United States District Court for the District ...

. See , .

Parties

At least two parties are involved in an interference proceeding: the inventor(s) or applicant(s) who filed an earlier patent application are called the "senior party", and the other inventor(s) or applicant(s) are called the "junior party". Both parties can be referred as "contestants", but that term is currently more likely to be used to describe the junior party. * Senior party: Merely being the first to file the application does not grant a party legal protection. It counts only as ''

prima facie ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...

'' evidence that he or she is the first inventor. A senior party can also file a "motion to dissolve interference" to request the dismissal of challenges to its priority. * Junior party: A party other than the senior party bears the burden of proving that he is the first inventor. The proceeding's administrator considers certain factors, such as the invention's conception date and the inventor's

diligence Diligence—carefulness and persistent effort or work—is one of the seven heavenly virtues. It is indicative of a work ethic, the belief that work is good in itself. In students Bernard et al. suggest that diligence in students is defin ...

in reducing the invention to practice. Until the 1960s, a junior party was frequently called an "interferant".

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.

Leahy-Smith America Invents Act

On September 16, 2011, President Obama signed the Leahy-Smith America Invents Act into law. Part of the Act changed the U.S. patent system from a first-to-invent system to a first-to-file system. As such, interference proceedings for any patent application with an effective filing date on or after March 16, 2013, were eliminated from U.S. patent law.http://www.uspto.gov/aia_implementation/aia-effective-dates.pdf

Derivation proceeding In United States patent law since the Leahy-Smith America Invents Act (AIA), a derivation proceeding is a trial proceeding under conducted at the Patent Trial and Appeal Board to determine whether (i) an inventor named in an earlier patent appli ...

s are replacing interference proceedings in the patent statutes, but the dispute surrounding a derivation proceeding is unrelated to that of an interference proceeding.

References

{{reflist

External links

MPEP 2300.01 Introduction - 2300 Interference Proceedings
(USPTO web site)

United States patent law