Recent test takers report question #12 from the October 2003 (pm) exam is in the Patent Bar database of tested questions.
12. In accordance with the USPTO rules and the procedures set forth in the MPEP, which of the following is true?
(A) Interferences will generally be declared even when the applications involved are owned by the same assignee since only one patent may issue for any given invention.
(B) A senior party in an interference is necessarily the party who obtains the earliest actual filing date in the USPTO.
(C) Reexamination proceedings may not be merged with reissue applications since third parties are not permitted in reissue applications.
(D) After a reexamination proceeding is terminated and the certificate has issued, any member of the public may obtain a copy of the certificate by ordering a copy of the patent.
(E) None of the above.
ANSWER: (D) is the most correct answer. See MPEP § 2292. As to (A) see 37 CFR § 1.602(a). As to (B) see 37 CFR § 1.601(m), which provides that the senior party has earliest effective filing date. As to (C), see MPEP § 2285 regarding merger of reissues and reexamination proceedings. As to (E), (D) is true.
{ 8 comments… read them below or add one }
so…answer B if I’m not mistaken is missing the word “NOT” before necessarily…
I am confused about this one too. Is there a typo in the question, or is there a difference between “earliest actual filing date” and “earliest effective filing date” w/ regards to choice B.
effective filing date refers to priority to provisional, parent etc. I though B was it until I read D then I thought oh crap.
This reasoning is correct; (B) is wrong because an EFFECTIVE filing date may be earlier than an ACTUAL filing date and would win the interference priority battle – ie, the earliest actual filing date is not necessarily the senior party. The answer is (D).
Got this one on my Prometric exam yesterday, went with B!
Why did you go with B? I thought the answer is D? Was the question changed a bit?
As per Prof. John M. Whtie –
As to A), has anyone ever heard of “same invention double patenting”? As to B), replace “necessarily” with “usually” and it is closer to be being true, but still not quite. C) actually happens from time to time since both Reissue and Reexam are open to the public. However, D) is the answer since it is actually correct.
The provision of the rules cited in the answer, 37 CFR 1.602(a) is not in the current MPEP (version 8). Does anyone know if similar language is found elsewhere in the rules? I’m wondering if the ‘effective filing date’ language still is sound.