Knobbe/Martens: Intellectual Property Law

Patent Interferences

What Are Patent Interferences?

Patent interferences are patent disputes between two or more parties regarding the award of patent rights for the same invention. Interferences are conducted by the Trial Section of the USPTO’s Patent Trial and Appeal Board (formerly the Board of Patent Appeals and Interferences). Following a decision by the Board, interferences can be appealed to the United States Court of Appeals for the Federal Circuit.

How Do Interferences Differ From Traditional Litigation?

There are several differences between interferences and traditional district court litigation. Chief among them:

  • In interferences, patent claims are given their "broadest reasonable interpretation”;
  • The burden of proof is by a “preponderance of the evidence" rather than “clear and convincing evidence”; and
  • The decision-makers (typically a panel of three Administrative Patent Judges) are technically trained.

In addition, patent interferences are normally scheduled to conclude two years after commencement and usually require considerably less discovery than litigation, which can make them less costly.

Did AIA do away with interferences?

No. Even with the passage of the America Invents Act (AIA), patent interferences will continue for many years to come. In particular, a patent application that claims priority to an application filed before March 16, 2013 is subject to the former “first to invent” patent law, and is subject to a patent interference. 

What is Knobbe Martens’ experience with interferences?

Knobbe Martens has an active patent interference practice, with USPTO-registered attorneys involved in all aspects of preparing and appearing before the Board and the Federal Circuit. In addition, we often lay the groundwork for a successful interference long before one is declared—with an eye toward avoiding or invoking the Board's declaration of interference.

Once a patent interference is declared, our attorneys are well versed in conducting both motion practice (the first phase of an interference) and priority contests (the second phase of an interference). We establish a team of both patent litigators and prosecutors for each case, supported by a dedicated staff of paralegals specially trained in the unique procedural rules governing patent interferences.

What are some of your more notable decisions?

We successfully represented the National Institutes of Health in a lengthy and complex patent interference regarding the vaccine for the human papillomavirus (now marketed by Merck as Gardisil®). We also successfully represented Masimo Corporation in several patent interferences relating to the company’s pulse oximetry technology, including successful appeals to the United States Court of Appeals for the Federal Circuit. We’ve successfully resolved a number of other proceedings in a wide range of technical disciplines, including molecular biology, genetics, semiconductor processing, computer software and medical devices.

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