What are the requirements for an examiner to require an applicant to add a claim to provoke an interference?
An examiner may require an applicant to add a claim to provoke an interference under certain conditions. According to 37 CFR 41.202(c), the following requirements must be met:
- The claim must be patentable to the applicant.
- The claim must be drawn to patentable subject matter claimed by another applicant or patentee.
- The claim must be considered apart from the question of priority under 35 U.S.C. 102(g).
The MPEP further states: 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.
Additionally, if the interference would be with a patent, the applicant must comply with 37 CFR 41.202(a)(2) through (a)(6), which include providing claim charts, explaining priority, and showing written description support.
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