Question 24
Domain 3: Patent Prosecution and MPEP-Based PracticeWhat is an interference-in-fact?
Correct answer: B
Explanation
An interference-in-fact exists when two claimed inventions are not patentably distinct, meaning they cover the same patentable subject matter. In patent practice, this is a situation where “the claims of two applications or a patent and an application are patentably indistinct,” so priority must be determined between them.
Why each option is right or wrong
A. An actual physical confrontation between inventors
B. A situation where the claims of two applications or a patent and an application are patentably indistinct
Under pre-AIA 35 U.S.C. § 135(a), an interference could be declared only when two parties claimed the same patentable invention, and the USPTO’s interference practice required the claims to be not patentably distinct. The Federal Circuit has described an interference-in-fact as existing when the subject matter of the counts and the involved claims are the same for priority purposes, i.e., the claims of two applications, or a patent and an application, are patentably indistinct.
C. A filing error discovered by the USPTO
D. A conflict between an examiner and an applicant