determine that two parties are claiming the same patentable
invention. 37 CFR § 1.603; 37 CFR § 1.606. If the examiner
makes the determination, then files and other useful information
are forwarded to the board for review. If an administrative
patent judge agrees that an interference is necessary, the
requisite "opinion" exists and an interference is declared by the
administrative patent judge. 37 CFR § 1.610(a). A notice
declaring interference is entered and forwarded to the parties.
The order declaring an interference is an interlocutory order
which is presumed to be correct. 37 CFR § 1.655(a).
4. Reconsidering whether interference is needed
At least initially, the "opinion" that claims of different
parties "interfere" is made ex parte. In the case where an
applicant attempts to institute an interference with a patent,
neither an examiner nor the board seeks input from the patentee
as to whether an interference should be declared. Thus, the
first opportunity for a patentee to express any views on whether
the Director should have been of the opinion that the claims of
an application and the claims of its patent interfere is after
the interference is declared.
The rules recognize that the "opinion" of the Director,
made through the board, is based on having heard but one side of
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Last modified: November 3, 2007