What happens when a patent in ex parte reexamination becomes involved in an interference?
When a patent undergoing ex parte reexamination becomes involved in an interference proceeding, the general policy of the USPTO is to continue both proceedings concurrently. As stated in the MPEP, “The general policy of the Office is that a reexamination proceeding will not be delayed, or stayed, because of an interference or the possibility of an interference.” This is due to the requirement in 35 U.S.C. 305 that reexamination proceedings be conducted with “special dispatch.”
However, the Board of Patent Appeals and Interferences (BPAI) has the flexibility to manage these concurrent proceedings as needed. According to the MPEP, “37 CFR 41.103 provides the Board with the flexibility to tailor a specific solution to occurrences where reexamination and interference proceedings for the same patent are copending, as such occurrences may arise.“
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