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 rel ...

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 sufficiency of disclosure, enabling disclo ...

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 primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., federal district, five ma ...

. 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. 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 id ...

. 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 conducted by a panel of

administrative patent judges Administration may refer to: Management of organizations * Management, the act of directing people towards accomplishing a goal ** Administrative Assistant, traditionally known as a Secretary, or also known as an administrative officer, administ ...

(

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 o ...

sitting on the Board of Patent Appeals and Interferences) 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 id ...

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 an interference contest. Its final judgment adjudicating one party as an earlier inventor is called a priority award, or simply an award. Appeals 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 court ...

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 United States district court, federal district court in the District of Columbia. It also occasionally handles (jointly with the United States Dist ...

. 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 ...

reducing the invention to practice In United States patent law, the reduction to practice is the step in the formation of an invention beyond the conception thereof. Reduction to practice may be either actual (the invention is actually carried out and is found to work for its intende ...

. 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 In United States patent law, the reduction to practice is the step in the formation of an invention beyond the conception thereof. Reduction to practice may be either actual (the invention is actually carried out and is found to work for its intende ...

, 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 In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...

, 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 proceedings 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