How are tie situations handled when two applications with interfering claims are ready to issue?
In the rare situation where two applications with interfering claims are both ready to issue simultaneously, the USPTO follows specific guidelines as outlined in MPEP 2303.01:
“Two applications, E and F, which are both subject to pre-AIA 35 U.S.C. 102(g), with interfering claims are pending. Both are ready to issue. (Such ties should be extremely rare; suspensions must not be used to create such ties.) If the applications have their earliest effective filing dates within six months of each other, then an interference may be suggested.“
However, if there is a significant difference in filing dates:
“If, however, application E’s earliest effective filing date is more than six months before application F’s earliest effective filing date, then application E should issue.“
This approach ensures fair treatment while minimizing delays in patent issuance. If the earlier-filed application issues and qualifies as prior art, it may be used to reject the later-filed application’s claims. Otherwise, a priority showing may be required.
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