How are interfering claims between a patent and a pending application handled?
When a claim of an issued patent and a claim of a pending application interfere, the pending application’s claim should not be allowed to issue. Instead, an interference should be suggested. This is because an interference cannot be declared between two patents.
MPEP 2303.01 provides an example: “A claim of patent A and a claim of application B, which is subject to pre-AIA 35 U.S.C. 102(g), interfere. Examination of application B is completed. An interference may not be declared between two patents. See pre-AIA 35 U.S.C. 135(a). Consequently, the interfering claim in application B should not be passed to issue, even if it has an earlier effective filing date than patent A. Instead, an interference should be suggested.“
This approach ensures that the interference can be properly resolved before the second patent is issued, maintaining the integrity of the patent system and avoiding conflicting patent rights.
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