Q) Interference and Reexamination (4.03.12p)

by admin on April 8, 2010 · 13 comments

in Exam Questions

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.

1 lanceNo Gravatar September 25, 2010 at 2:25 pm

so…answer B if I’m not mistaken is missing the word “NOT” before necessarily…

2 AnandNo Gravatar November 30, 2010 at 4:12 pm

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.

3 Number_27No Gravatar January 3, 2011 at 8:15 pm

effective filing date refers to priority to provisional, parent etc. I though B was it until I read D then I thought oh crap.

4 PHOSITANo Gravatar March 3, 2011 at 11:36 am

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).

5 Number_27No Gravatar January 5, 2011 at 8:09 am

Got this one on my Prometric exam yesterday, went with B!

6 RooNo Gravatar March 15, 2011 at 11:27 am

Why did you go with B? I thought the answer is D? Was the question changed a bit?

7 LMNo Gravatar March 28, 2011 at 1:39 pm

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.

8 jkpatentlawNo Gravatar June 16, 2012 at 6:07 pm

good tip for “necessarily” and “usually.” I Probably heard him say that….probably….maybe?

9 KerstinNo Gravatar January 29, 2012 at 11:41 pm

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.

10 patentmanNo Gravatar July 22, 2015 at 2:13 pm

For Answer (A), MPEP 2304.05

11 KFNo Gravatar March 11, 2012 at 7:47 pm

Has anyone found support for answer D in the MPEP that clearly lays out the obtaining a copy of the certificate piece? I’ll just remember D I guess.?

12 SolNo Gravatar April 1, 2012 at 7:24 pm

to KF

A copy of the certificate will also be made a part of any patent copies prepared by the Office subsequent to the issuance of the certificate.

So order a copy of the patent, you get a copy of the certificate

13 HSUNo Gravatar August 9, 2012 at 4:47 pm

37 CFR § 1.601 which defines a senior party as the one who has the earliest effective filing date does not exist any more.

37 CFR 41.201 (at page 2300-3 of MPEP) states in part:

Senior party means the party entitled to the presumption under § 41.207(a)(1) that it is the prior inventor. Any other party is a junior party.

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