Can a claim lost in interference be reinstated or modified instead of cancelled?

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.

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.