Who decides whether to institute a derivation proceeding?
The decision to institute a derivation proceeding is made by the Director of the United States Patent and Trademark Office (USPTO). As stated in MPEP 2310.01, which cites 35 U.S.C. 135(a)(1):
“Whenever the Director determines that a petition filed under this subsection demonstrates that the standards for instituting a derivation proceeding are met, the Director may institute a derivation proceeding.”
This means that after reviewing the petition, the Director has the discretion to initiate the proceeding if they believe the necessary standards have been met. The Director’s decision is based on whether the petition provides sufficient evidence and meets the legal requirements for a derivation proceeding.
To learn more:
Topics:
MPEP 2300 - Interference And Derivation Proceedings,
MPEP 2310.01 - Statutory Basis,
Patent Law,
Patent Procedure