What is the role of the examiner in reviewing an interference suggestion?
The examiner’s role in reviewing an interference suggestion is primarily to check for formal sufficiency and to confirm the existence of patentable interfering claims. According to MPEP § 2304.02:
“The examiner must review the suggestion for formal sufficiency. As explained in MPEP § 2304.02(c), the examiner is generally not responsible for determining the substantive adequacy of any priority showing.”
Specifically, the examiner must confirm that the applicant has:
- Identified at least one patentable count
- Identified at least one patentable claim from each party for each count
- Provided a claim chart comparing at least one set of claims for each count
The MPEP further clarifies: “The examiner’s role is to confirm that there are otherwise patentable interfering claims and that the formalities of 37 CFR 41.202 are met.”
The examiner may offer observations on any priority showing when referring the suggested interference to the Board, but is not responsible for examining its substantive sufficiency in most cases.
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