What is the best practice for adding or amending claims to provoke an interference?

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 it comes to provoking an interference, the MPEP provides guidance on best practices. According to MPEP 2304.02(d):

“Rather than copy a claim verbatim, the better practice is to add (or amend to create) a fully supported claim and then explain why, despite any apparent differences, the claims define the same invention.”

This approach is recommended because simply copying claims can lead to problems due to differences in underlying disclosures between applications. These differences might result in a claim being allowable to one party but not to the other, or require different constructions of identical claim language.

By creating a fully supported claim and explaining its equivalence to the opponent’s claim, an applicant can better ensure that the interference is based on genuinely interfering subject matter while maintaining proper written description support.