Patent interference involves the competition between at least two agents over the rightful ownership of a patent. These issues are contested through the U.S. Patent and Trademark Office (USPTO) and are then presented to the Patent Trial and Appeal Board for review. The job of this board is to conclude rightful ownership, which is awarded to the party that either:

  • Thought of the concept and acted on it before the other party
  • Thought of the concept first and put forth acceptable effort to act on it before the other party began their own initiation

What Are Patent Interferences?

Patent interferences occur when a patent is requested by an agency, only to find out that there are other agencies that are also requesting a patent for the same concept (or already own the rights). As a patent cannot be owned by more than one entity, a clear owner must be established. Determining who is the true owner of the patent is called determining priority.

Instances of patent interference only occur when there are two or more agencies that are claiming the rights to the same concept; general similarities do not apply and would therefore not be considered.

It is important to note that while an agency can claim true ownership over a previously-issued patent, the patent in question must have been granted less than one year prior, and the agency competing against the original owner must legally qualify to own a patent.

While conflicts over true ownership do occur, only 1 percent of disputes continue with patent interference proceedings. When cases do move forward, each party is responsible for providing support for their own claim. This evidence is then reviewed by a panel of three judges. In addition to submissions of evidence, the review process focuses on the conception of the invention, which is the idea itself, and reduction to practice, which is the action of bringing the idea to life.

Proving reduction to practice is essential in patient interference; however, the submission of an in-depth patent application similarly allows the applicant to meet this criteria.

There are some instances of dispute that result in the concept being deemed not patentable, in which case neither party is able to claim ownership following the proceedings.

Finally, if after the proceedings an agent is unhappy with the conclusion of an investigation, they can request re-investigation through the United States Court of Appeals for the Federal Circuit.

How Is Patent Interference Initiated?

There are two ways to initiate patent interference:

  • Through the suggestion of a patent examiner by sending the application to the USPTO Board of Patent Appeals.
  • Through the request of the applicant by sending their request to the patent examiner.

In cases where patent interference is initiated through the applicant's request, they must:

  • Identify the claim being submitted.
  • Identify the opposing party.
  • Identify their reasoning for requesting patent interference.

Ultimately, the USPTO Patent Board makes the final decision regarding moving forward with patent interference. If they decided in favor of patent interference, each party is informed via mail, outlining their role in the upcoming proceedings.

In each proceeding, there will be a senior party, who is assumed to be the rightful owner, and one or more junior parties. The senior party is decided based upon the dates each application was originally submitted; the owner of the first application submitted is considered the rightful owner of the patent until declared otherwise.

How Do You Win a Patent Interference?

Even if you were not the first party to attempt to bring the concept to life, you can still win a patent interference if you can prove that you were the first to think of the idea. However, this is only possible if the party can prove that they attempted to act on the idea before their competitor began initialization. Similarly, the party must be able to provide a legitimate reason explaining why they were not first. Acceptable explanations may include delays in obtaining the following:

  • Supplies
  • Staff
  • Official clearance

How Do Interferences Differ From Traditional Litigation?

Interferences differ from traditional litigation in the following ways:

  • Applications are processed using the broadest reasonable interpretation.
  • Proof is established through the preponderance of evidence.
  • Applications are evaluated by technically-trained judges.

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