What criteria should guide an examiner in requiring a claim for interference?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

When considering whether to require an applicant to add a claim for interference under 37 CFR 41.202(c), examiners should follow these principles:

• Examination of the application should be otherwise completed
• The required claim must not encompass prior art or be barred
• The application must provide adequate support under 35 U.S.C. 112(a) for the subject matter
• A claim should not be required if the applicant states the subject matter is not their invention
• Claims from published applications should only be required if they have been allowed

The MPEP advises: “Given the cost and complexity of interferences, a requirement to add a claim under 37 CFR 41.202(c) should not be lightly made.” Examiners are instructed to consult with an Interference Practice Specialist before making such a requirement.