What is a disclaimer in the context of patent interference proceedings?

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.

In the context of patent interference proceedings, a disclaimer refers to a situation where an applicant is deemed to have given up their right to claim certain subject matter. The MPEP section 2304.04(c) explains that claims may be rejected on the ground that the applicant has disclaimed the subject matter involved. This can arise from:

• Failure to make claims suggested for interference under 37 CFR 41.202(c)
• Failure to copy a claim from a patent when suggested by the examiner
• Failure to respond or appeal, within the time limit, to the examiner’s rejection of claims copied from a patent

The MPEP states: “The rejection on disclaimer applies to all claims not patentably distinct from the disclaimed subject matter as well as to the claims directly involved.” This means that a disclaimer can have broad implications for an applicant’s ability to claim certain inventions or related subject matter.