Smit & Van Wyk, Inc.

Patent Interferences System In Place - USA

Patent interferences refer to priority contests as proceedings instituted by a country’s patent office to determine priority filing dates of two or more contesting patent applications. At present the US Patent Office is the only one that follows a patent interferences procedure.

Most countries in the world make use of a first filing date system whereas the USA first to invent system enables an inventor who has failed to file a patent application in time, the opportunity to still lodge a challenge against an inventor that has already filed a patent application. There are however, specific requirements to be met for patent interferences proceedings to take place.

Patent interferences may be instituted against an existing patent only within the first year after the patent has been granted.

Since a patent can only be granted to one inventor or group of inventors for a particular invention, patent interferences may be needed to establish to whom such rights should go if for instance, two applications for the same type of invention are filed by two separate parties.

Overall a rather small percentage of patents and pending patents are ever subject to patent interferences.

The parties to the patent interferences proceedings must provide enough factual evidence regarding the invention date. As such it is recommended for any South African hoping to also file for patent rights in the USA, to keep thorough record of the invention process, especially the starting date.

If a party or the parties fail to provide enough evidence to support their claim for the original invention date, the filing for patent rights date is taken. As such it is also recommended that one file for patent rights at the earliest possible date.