How are finally refused or canceled claims treated in an interference?

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.

According to MPEP 2304.01(d), finally refused or canceled claims are generally excluded from an interference proceeding. The MPEP states:

“Claims which have been finally refused or canceled are generally excluded from the interference.”

This treatment of finally refused or canceled claims serves several purposes:

• It streamlines the interference process by focusing on active, potentially patentable claims.
• It prevents the reintroduction of claims that have already been determined to be unpatentable.
• It helps maintain the efficiency and clarity of the interference proceeding.

However, it’s important to note that the word “generally” in the MPEP indicates that there might be rare exceptions to this rule, which would be determined by the administrative patent judge (APJ) based on the specific circumstances of the case.