Are lost counts in an interference considered statutory prior art?
Lost counts in an interference are not automatically considered statutory prior art. The MPEP clarifies:
“Loss of an interference count alone does not make its subject matter statutory prior art to losing party; however, lost count subject matter that is available as prior art under 35 U.S.C. 102 may be used alone or in combination with other references under 35 U.S.C. 103.”
This means that while losing an interference count doesn’t automatically make the subject matter prior art, if the lost count subject matter qualifies as prior art under other provisions of 35 U.S.C. 102, it can be used in obviousness rejections under 35 U.S.C. 103.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2138.01 - Interference Practice,
Patent Law,
Patent Procedure