Q: How frequent are interferences and what documentation does the USPTO rely on to prove first to invent?

Interferences are infrequent and the number of interferences has been declining in recent years.

Peggy Focarino

Peggy Focarino

About 50 interferences are presently pending before the Board of Patent Appeals and Interferences.

An interference is a trial-based proceeding that is conducted by a motions practice. Parties may file motions, accompanied by persuasive argument and sufficient evidence, to obtain relief.

A junior party (one with the latest effective filing date) in an interference can seek relief in the form of moving to be declared the senior party.

One ground for moving for this relief is by showing the junior party was the first to invent – using evidence and argument to prove the appropriate combination of conception, reduction to practice, and diligence.

Common types of evidence relied upon in successful priority motions include testimony from an inventor, testimony of witnesses, and documents. The most common documents include signed and witnessed lab notebooks, test results, reports, communications between inventors and third parties, and the like.

They are most often accompanied by authenticating evidence such as testimony from a records custodian to show that the documents are genuine. Each decision as to whether the documents are sufficient is unique, and depends upon the facts of that individual case and the specific arguments made by the parties in that case.