How does an applicant explain priority in an interference suggestion?

When suggesting an interference, an applicant must explain their priority position in detail. According to 37 CFR 41.202(a)(4), the suggestion must “Explain in detail why the applicant will prevail on priority.” This explanation can take different forms depending on the applicant’s priority position:

• If the applicant has an earlier constructive reduction-to-practice than the apparent earliest constructive reduction-to-practice of the other application or patent, they can simply explain their entitlement to the earlier date.
• Otherwise, the applicant must:
  • (A) antedate the earliest constructive reduction-to-practice of the other application or patent,
  • (B) demonstrate why the other application or patent is not entitled to its apparent earliest constructive reduction-to-practice, or
  • (C) provide some other reason why the applicant should be considered the prior inventor.

The showing of priority may be similar to showings under 37 CFR 1.130-1.132, although there are differences in the scope of what must be shown.

To learn more:

• interference
• priority
• constructive reduction-to-practice
• patent application