Interference only declared once examination is complete

Elevator033Westbrook v. Gray, 75 U.S.P.Q.2d 1607 (BPAI) (UNPUBLISHED).

In a short decision, the Patent Board confirmed that “examination must be complete in an application before an interference involving that application is initiated.”

Applicant Gray filed a petition with the Board asking for guidance as to whether it should file a motion suggesting the declaration of an interference. Finding that examination of the application had not been completed, the Board held that an interference would be premature.

Under MPEP 2301.01, before a claim should be “considered as the basis for the count of an interference, the claim should be allowable and in good form.”