MPEP § 2302 — MPEP § 2302
Current through: 2022-07-01

2302-Consult an Interference Practice Specialist 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2300 

 Section 2302 
 

 
 
 
 
 
 2302 Consult an Interference Practice Specialist [R-08.2017]

 Technology Centers (TCs) have at least one Interference Practice
 Specialist (IPS), who must be consulted when suggesting an interference to the Board.
 

 Less than one percent of all applications become involved in an
 interference. Consequently, examiners are not expected to become experts in interference
 practices. Instead, examiners are expected to be proficient in identifying potential
 interferences and to consult with an IPS in their TC on interference matters. The IPS, in
 turn, is knowledgeable about when and how to suggest interferences, how to handle inquiries
 to and from the Board before and during interferences, and how to handle applications after
 interferences are completed.
 

 An IPS must approve any referral of a suggested interference to the Board.
 The referral must include a completed Form PTO-850, which either an IPS or a Director of
 the examiner’s TC must sign.
 

 IPSs consult with administrative patent judges (APJs) that declare
 interferences to stay current in interference practice. When necessary, an IPS may arrange
 for a consultation with an APJ to discuss a suggested interference or the effect of a
 completed interference. Examiners must promptly address inquiries or requests from an IPS
 regarding a suggested interference.
 

 
 GENERAL PRACTICES 
 

 
 FOR APPLICATIONS SUBJECT TO PRE-AIA 35 U.S.C. 102(g)

 Practice 1. Consult an Interference Practice Specialist. In an effort to maximize uniformity, when an examiner first becomes
 aware that a potential interference exists or any other interference issue arises
 during prosecution of an application, the examiner should bring the matter to the
 attention of an IPS in the examiner’s TC. 
 

 The IPS in turn will consult with an APJ designated from time to
 time by the Chief Administrative Patent Judge.
 

 A plan of action will be developed on a case-by-case basis.

 Practice 2. Party not in condition for allowance. When:

 
 (A) a first application and a second application claim the same
 patentable invention; and
 

 (B) a first application is in condition for allowance; and 

 (C) the second application is not in condition for allowance, 

 
 then generally a notice of allowance should be entered in the first
 application and it should become a patent.
 

 Without suspending action in the first application and after
 consultation consistent with Practice 1 above, the examiner may wish to give the
 second applicant a very brief period of time within which to put the second
 application in condition for allowance, e.g., by canceling rejected claims thereby
 leaving only allowable claims which interfere with the claims of the first
 application.
 

 When examination of the second application is complete, an
 application versus patent interference may be appropriate.
 

 Practice 3. Both in condition for allowance; earliest effective filing
 dates within six months. When two applications are in condition for allowance and the
 earliest effective filing dates of the applications are within six months of each
 other, an application versus application interference may be suggested, provided the
 applicant with the later filing date makes the showing required by 37 CFR
 41.202(d) . Note that if the earliest filed application is
 available as a reference (for example, as a published application under
 pre-AIA 35
 U.S.C. 102(e) ) against the other application, then a rejection
 should be made against the other application. Ideally, the rejection would be made
 early in the prosecution, but if it is not and as a result the junior application is
 not in condition for allowance, then the senior application should be issued. In
 light of patent term adjustments it is no longer appropriate to suspend an
 application on the chance that an interference might ultimately result.
 

 Practice 4. Both in condition for allowance; earliest effective filing
 dates not within six months. If the applications are both in condition for allowance and earliest
 effective filing dates of the applications are not within six months of each other,
 the application with the earliest effective filing date shall be issued. The
 application with the later filing date shall be rejected on the basis of the
 application with the earliest effective filing date. Further action in the
 application with the later filing date will be governed by prosecution in that
 application. If the applicant in the application with the later filing date makes the
 showing required by 37 CFR 41.202(d) , an application versus patent interference
 may be declared. If no rejection is possible over the patent issuing from the
 application with the earliest effective filing date, then the applicant must still be
 required under 35
 U.S.C. 132 to make the priority showing required in
 37 CFR
 41.202(d) .
 

 Practice 5. Suspension discouraged. Suspension of prosecution pending a possible interference should be
 rare and should not be entered prior to the consultation required by Practice 1
 above.
 

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 2301-Interference Proceedings 
 2301.01-Statutory Basis 

 2301.02-Definitions 

 2301.03-Interfering Subject Matter 

 2301.04-Applicability of 35 U.S.C. 102(g) to Applications filed on or after March 16, 2013 

 
 

 2302-Consult an Interference Practice Specialist 

 2303-Completion of Examination 
 2303.01-Issuance and Suspension 

 2303.02-Other Outstanding Issues with Patents 

 
 

 2304-Suggesting an Interference 
 2304.01-Preparation of an Application for Interference 
 2304.01(a)-Interference Search 

 2304.01(b)-Obtaining Control Over Involved Files 

 2304.01(c)-Translation of Foreign Benefit Application 

 2304.01(d)-Sorting Claims 

 
 

 2304.02-Applicant Suggestion 
 2304.02(a)-Identifying the Other Application or Patent 

 2304.02(b)-Counts and Corresponding Claims 

 2304.02(c)-Explaining Priority 

 2304.02(d)-Adequate Written Description 

 
 

 2304.03-Patentee Suggestion 

 2304.04-Examiner Suggestion 
 2304.04(a)-Interfering Claim Already in Application 

 2304.04(b)-Requiring a Claim 

 2304.04(c)-Rejections Based on Disclaimer 

 
 

 2304.05-Common Ownership 

 
 

 2305-Requiring a Priority Showing 

 2306-Secrecy Order Cases 

 2307-Action During an Interference 
 2307.01-Ex Parte Communications 

 2307.02-Access to Related Files 

 2307.03-Suspension of Related Examinations 

 2307.04-Additional Parties to Interference 

 2307.05-Board Action on Related Files 

 2307.06-Action at the Board 

 
 

 2308-Action After an Interference 
 2308.01-Final Disposal of Claims 

 2308.02-Added or Amended Claims 

 2308.03-Estoppel Within the Office 
 2308.03(a)-Losing Party 

 2308.03(b)-No Interference-in-Fact 

 2308.03(c)-No Second Interference 

 
 

 2308.04-Office Procedure Following Decision by the U. S. Court of Appeals for the Federal Circuit 

 
 

 2309-National Aeronautics and Space Administration or Department of Energy 

 2310-Derivation Proceedings 
 2310.01-Statutory Basis 

 2310.02-Definitions 

 
 

 2311-Consult a Technology Center Practice Specialist 

 2312-Board May Assume Jurisdiction 

 2313-Action Once a Derivation Proceeding is Instituted 

 2314-Action at the Board 

 2315-Action After a Derivation Proceeding is Decided 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:49:35