How is priority explained in an interference suggestion?

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.

When explaining priority in an interference suggestion, the applicant must provide a detailed explanation as to why they will prevail on priority. This is required by 37 CFR 41.202(a)(4).

According to MPEP § 2304.02(c), if the application has an earlier constructive reduction-to-practice than the apparent earliest of the other application or patent, the applicant may simply explain their entitlement to the earlier date. Otherwise, the applicant must:

• Antedate the earliest constructive reduction-to-practice of the other application or patent
• Demonstrate why the other application or patent is not entitled to its apparent earliest constructive reduction-to-practice
• Provide some other reason why the applicant should be considered the prior inventor

The MPEP notes: “The showing of priority may look similar to showings under 37 CFR 1.130-1.132, although there are differences particularly in the scope of what must be shown.”