What is a threshold issue in a patent interference?
A threshold issue in a patent interference is a critical concept that can potentially end the proceeding early. The MPEP 2301.02 defines it as follows:
“Threshold issue means an issue that, if resolved in favor of the movant, would deprive the opponent of standing in the interference. Threshold issues may include: (1) No interference-in-fact, and (2) In the case of an involved application claim first made after the publication of the movant’s application or issuance of the movant’s patent: (i) Repose under 35 U.S.C. 135(b) in view of the movant’s patent or published application, or (ii) Unpatentability for lack of written description under 35 U.S.C. 112 of an involved application claim where the applicant suggested, or could have suggested, an interference under § 41.202(a).”
In essence, a threshold issue is a fundamental problem that, if proven, would terminate the interference by showing that one party lacks the right to participate in the proceeding.
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