How does the USPTO handle attempts to provoke an interference with a patent under reexamination?

When an applicant attempts to provoke an interference with a patent that is undergoing reexamination, the USPTO follows a specific procedure:

• The applicant must comply with 37 CFR 41.202(a), including identifying the patent under reexamination.
• The application claims may be rejected on any applicable ground, including prior art cited in the reexamination.
• Prosecution of the application continues as far as possible.
• If the application is in condition for allowance but still contains claims that interfere with the patent under reexamination, an interference should be proposed.

However, the MPEP states: “The examiner must notify the Office of Patent Legal Administration (OPLA) before proposing the interference, and such an interference may not be proposed unless authorized by OPLA.” If the interference is not authorized, the application is suspended until the reexamination certificate is issued and published.

To learn more:

• interference
• reexamination
• patent application
• OPLA