Under what conditions will a first application usually be granted a Notice of Allowance and become a patent in spite of a second application with potentially interfering claims?
A first application will usually be granted a Notice of Allowance and become a patent when all of the following conditions are met:
- a first application and a second application claim the same patentable invention; and
- a first application is in condition for allowance; and
- the second application is not in condition for allowance
The answer to this question can be found in chapter 2300 of the MPEP. This chapter covers Interference proceedings.
The answer is from the 9th Edition, Revision 07.2015. Depending on future changes to the MPEP, the question and answer may or may not be applicable in later Editions or revisions.
This question and answer comes from section 2302 of the MPEP. The following is a brief summary of section 2302.
2302 Consult an Interference Practice Specialist
This section helps explain when an examiner should consult an interference practice specialist (IPS). It also explains that an interference should take place after the examination of the application if one is necessary at all.
It covers the differences between an application vs. patent interference (which commonly happens when one party is not in condition for allowance) and an application vs. application interference (which often happens when both parties are in condition for allowance and the earliest effective filing dates are within six months.
When both parties are in condition for allowance and the earliest effective filing dates of the applications are not within six months of each other, an interference should not be called. Further details are discussed in this section.