What is the difference between interference and derivation proceedings?

While both interference and derivation proceedings deal with competing claims to an invention, they serve different purposes and apply to different time periods in U.S. patent law. The MPEP 2301 briefly mentions derivation proceedings:

“See MPEP § 2310 et seq. for discussion of derivation proceedings.”

Key differences include:

• Interference Proceedings:
  • Apply to pre-AIA (before March 16, 2013) patent applications
  • Determine which party was the first to invent
  • Based on the first-to-invent system
• Derivation Proceedings:
  • Apply to AIA (on or after March 16, 2013) patent applications
  • Determine if an inventor named in an earlier application derived the invention from an inventor named in a later application
  • Based on the first-inventor-to-file system

Understanding these differences is crucial for patent applicants and practitioners navigating the U.S. patent system’s transition from first-to-invent to first-inventor-to-file.

To learn more:

• interference proceeding
• derivation proceeding
• AIA
• pre-AIA
• USPTO