Federal Circuit Clarifies Test for Exception to Increasingly Rare Interference Proceedings

In Speck v. Bates, the central issue revolves around the application of a one-way or two-way test to evaluate material differences between pre-critical and post-critical claims in patent disputes. This determines if claims are time-barred.

The shift from a first-to-invent to a first-to-file system under the AIA has altered priority dispute resolutions significantly, making interference proceedings less common, especially with pre-AIA applications still being filed.

The Federal Circuit clarified that an interference is declared when two patent applications or patents overlap in subject matter, with a defined 'count' determining the relationship between claims and the parties' filing dates.

Determining material differences between claims involves examining whether the language of pre-critical claims diverges from post-critical claims, which impacts their eligibility under the established time-bars for interference.

Read at Intellectual Property Law Blog