position to determine whether to issue a patent to the party who
did not lose the interference.
A second reason, which is similar to the first reason,
arises when the Director finds that an applicant claims the same
patentable invention as a patentee owning an "unexpired" patent.
Since two patents are not issued for the same patentable
invention, the Director needs a vehicle to determine whether the
applicant or the patentee first made the invention. Again, that
vehicle is an interference before the board under 35 U.S.C.
§ 135(a). If the applicant loses the interference, its involved
claims stand rejected by the agency. Id. On the other hand, if
the patentee loses, its involved claims are cancelled and the
Director may issue a patent to the applicant. Id.
3. Initiating (i.e., declaring) an interference
The triggering mechanism for initiating (i.e., declaring,)
an interference is the formation of an opinion by the Director
that (1) the claims of two applications or (2) the claims of an
application and an unexpired patent "interfere". In the words of
35 U.S.C. § 135(a) (emphasis added):
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 ***.
How does the "Director" become of "the opinion" that claims
of different parties "interfere"? First, an examiner must
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Last modified: November 3, 2007