Can a claim lost in interference be reinstated or modified instead of cancelled?
While MPEP 1302.04(d) briefly mentions “Cancellation of Claim Lost in Interference [R-08.2012] See MPEP Chapter 2300“, it doesn’t provide details on alternatives to cancellation. However, based on the practices outlined in MPEP Chapter 2300, there are some potential alternatives to outright cancellation:
- Modification: In some cases, the applicant may be able to modify the lost claim to differentiate it from the winning party’s claim, potentially allowing a modified version to remain in the application.
- Appeal: If the applicant believes the interference decision was incorrect, they may have the option to appeal the decision to the Federal Circuit.
- Continuation Application: The applicant might file a continuation application to pursue the subject matter of the lost claim in a different form or with modified scope.
It’s important to note that the specific options available depend on the circumstances of the interference and the examiner’s decisions. Applicants should consult with a patent attorney to determine the best course of action following an interference proceeding.
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