What are the consequences of not adding a claim to provoke an interference when required by an examiner?

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 an examiner requires an applicant to add a claim to provoke an interference, there are specific consequences for not complying, as outlined in MPEP 710.02(c):

“An examiner may require an applicant to add a claim to provoke an interference for an application subject to pre-AIA 35 U.S.C. 102(g). Failure to satisfy the requirement within a period (not less than one month) the examiner sets will operate as a concession of priority for the subject matter of the claim.”

Key points:

• The examiner sets a time period of at least one month for adding the claim.
• Failure to add the claim doesn’t result in application abandonment.
• However, it’s treated as a concession of priority for the subject matter of the claim.

For more information on interferences, refer to MPEP Chapter 2300.