Patents - 35 USC Section 135

01/19/04

Sec. 135. Interferences

(a) Whenever an application is made for a patent which, in the
opinion of the Director, would interfere with any pending
application, or with any unexpired patent, an interference may be
declared and the Director shall give notice of such declaration to
the applicants, or applicant and patentee, as the case may be. The
Board of Patent Appeals and Interferences shall determine questions
of priority of the inventions and may determine questions of
patentability. Any final decision, if adverse to the claim of an
applicant, shall constitute the final refusal by the Patent and
Trademark Office of the claims involved, and the Director may issue
a patent to the applicant who is adjudged the prior inventor. A
final judgment adverse to a patentee from which no appeal or other
review has been or can be taken or had shall constitute
cancellation of the claims involved in the patent, and notice of
such cancellation shall be endorsed on copies of the patent
distributed after such cancellation by the Patent and Trademark
Office.
(b)(1) A claim which is the same as, or for the same or
substantially the same subject matter as, a claim of an issued
patent may not be made in any application unless such a claim is
made prior to one year from the date on which the patent was
granted.
(2) A claim which is the same as, or for the same or
substantially the same subject matter as, a claim of an application
published under section 122(b) of this title may be made in an
application filed after the application is published only if the
claim is made before 1 year after the date on which the application
is published.
(c) Any agreement or understanding between parties to an
interference, including any collateral agreements referred to
therein, made in connection with or in contemplation of the
termination of the interference, shall be in writing and a true
copy thereof filed in the Patent and Trademark Office before the
termination of the interference as between the said parties to the
agreement or understanding. If any party filing the same so
requests, the copy shall be kept separate from the file of the
interference, and made available only to Government agencies on
written request, or to any person on a showing of good cause.
Failure to file the copy of such agreement or understanding shall
render permanently unenforceable such agreement or understanding
and any patent of such parties involved in the interference or any
patent subsequently issued on any application of such parties so
involved. The Director may, however, on a showing of good cause for
failure to file within the time prescribed, permit the filing of
the agreement or understanding during the six-month period
subsequent to the termination of the interference as between the
parties to the agreement or understanding.
The Director shall give notice to the parties or their attorneys
of record, a reasonable time prior to said termination, of the
filing requirement of this section. If the Director gives such
notice at a later time, irrespective of the right to file such
agreement or understanding within the six-month period on a showing
of good cause, the parties may file such agreement or understanding
within sixty days of the receipt of such notice.
Any discretionary action of the Director under this subsection
shall be reviewable under section 10 of the Administrative
Procedure Act.
(d) Parties to a patent interference, within such time as may be
specified by the Director by regulation, may determine such contest
or any aspect thereof by arbitration. Such arbitration shall be
governed by the provisions of title 9 to the extent such title is
not inconsistent with this section. The parties shall give notice
of any arbitration award to the Director, and such award shall, as
between the parties to the arbitration, be dispositive of the
issues to which it relates. The arbitration award shall be
unenforceable until such notice is given. Nothing in this
subsection shall preclude the Director from determining
patentability of the invention involved in the interference.

AMENDMENTS
2002 - Subsecs. (a), (c), (d). Pub. L. 107-273 made technical
correction to directory language of Pub. L. 106-113, Sec.
1000(a)(9) [title IV, Sec. 4732(a)(10)(A)]. See 1999 Amendment
notes below.
1999 - Subsec. (a). Pub. L. 106-113, Sec. 1000(a)(9) [title IV,
Sec. 4732(a)(10)(A)], as amended by Pub. L. 107-273, substituted
"Director" for "Commissioner" wherever appearing.
Subsec. (b). Pub. L. 106-113, Sec. 1000(a)(9) [title IV, Sec.
4507(11)], designated existing provisions as par. (1) and added
par. (2).
Subsecs. (c), (d). Pub. L. 106-113, Sec. 1000(a)(9) [title IV,
Sec. 4732(a)(10)(A)], as amended by Pub. L. 107-273, substituted
"Director" for "Commissioner" wherever appearing.
1984 - Subsec. (a). Pub. L. 98-622, Sec. 202, amended subsec. (a)
generally, substituting ", an interference may be declared and the
Commissioner shall give notice of such declaration to the
applicants, or applicant and patentee, as the case may be" for "he
shall give notice thereof to the applicants, or applicant and
patentee, as the case may be" and substituting provisions vesting
jurisdiction for determining questions of interference in the Board
of Patent Appeals and Interferences for provisions vesting such
jurisdiction in a board of patent interferences.
Subsec. (d). Pub. L. 98-622, Sec. 105, added subsec. (d).
1975 - Subsecs. (a), (c). Pub. L. 93-596 substituted "Patent and
Trademark Office" for "Patent Office" wherever appearing.
1962 - Pub. L. 87-831 designated first and second pars. as
subsecs. (a) and (b) and added subsec. (c).
EFFECTIVE DATE OF 1999 AMENDMENT
Amendment by section 1000(a)(9) [title IV, Sec. 4507(11)] of Pub.
L. 106-113 effective Nov. 29, 2000, and applicable only to
applications (including international applications designating the
United States) filed on or after that date, see section 1000(a)(9)
[title IV, Sec. 4508] of Pub. L. 106-113, as amended, set out as a
note under section 10 of this title.
Amendment by section 1000(a)(9) [title IV, Sec. 4732(a)(10)(A)]
of Pub. L. 106-113 effective 4 months after Nov. 29, 1999, see
section 1000(a)(9) [title IV, Sec. 4731] of Pub. L. 106-113, set
out as a note under section 1 of this title.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by section 105 of Pub. L. 98-622 applicable to all
United States patents granted before, on, or after Nov. 8, 1984,
and to all applications for United States patents pending on or
filed after that date, except as otherwise provided, see section
106 of Pub. L. 98-622, set out as a note under section 103 of this
title.
Amendment by section 202 of Pub. L. 98-622 effective three months
after Nov. 8, 1984, see section 207 of Pub. L. 98-622, set out as a
note under section 41 of this title.
EFFECTIVE DATE OF 1975 AMENDMENT
Amendment by Pub. L. 93-596 effective Jan. 2, 1975, see section 4
of Pub. L. 93-596, set out as a note under section 1111 of Title
15, Commerce and Trade.

Last modified: April 19, 2006