How does the USPTO handle situations where one application’s effective filing date is more than six months before another’s in potential interference cases?
When one application’s effective filing date is more than six months earlier than another’s in potential interference cases, the USPTO generally favors issuing the earlier-filed application. MPEP 2303.01 states:
“If, however, application E’s earliest effective filing date is more than six months before application F’s earliest effective filing date, then application E should issue.“
After issuing the earlier-filed application, the USPTO then considers its impact on the later-filed application:
“If application E (or the resulting patent E) is available as prior art (under pre-AIA 35 U.S.C. 102(a) or 102(e), or where applicable pre-AIA 35 U.S.C. 102(g)) against application F, then a rejection should be made. If not, a requirement under 37 CFR 41.202(d) to show priority should be made.“
This approach prioritizes the timely issuance of patents while ensuring that priority issues are addressed appropriately, either through prior art rejections or by requiring the later applicant to demonstrate priority.
To learn more: