What is the significance of ‘interfering subject matter’ in patent applications?
‘Interfering subject matter’ is a crucial concept in patent law, particularly when dealing with potentially conflicting claims. According to MPEP 715.05:
“As provided in 37 CFR 41.203(a), an interference exists if the subject matter of a claim of one party would, if prior art, have anticipated or rendered obvious the subject matter of a claim of the opposing party and vice versa.”
This means that if two applications or an application and a patent have claims that are identical or not patentably distinct, they are claiming ‘interfering subject matter’. In such cases, an applicant cannot use an affidavit under 37 CFR 1.131(a) to overcome a reference, as this could result in two patents being issued for the same invention. Instead, the matter must be resolved through interference proceedings.
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