MPEP 2308
Action After an Interference

Ninth Edition of the MPEP, Revision 10.2019, Last Revised in June 2020

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2308    Action After an Interference [R-10.2019]

37 C.F.R. 41.127 Judgment.

  • (a) Effect within Office—
    • (1) Estoppel. A judgment disposes of all issues that were, or by motion could have properly been, raised and decided. A losing party who could have properly moved for relief on an issue, but did not so move, may not take action in the Office after the judgment that is inconsistent with that party’s failure to move, except that a losing party shall not be estopped with respect to any contested subject matter for which that party was awarded a favorable judgment.
    • (2) Final disposal of claim. Adverse judgment against a claim is a final action of the Office requiring no further action by the Office to dispose of the claim permanently.


  • (c) Recommendation. The judgment may include a recommendation for further action by the examiner or by the Director. If the Board recommends rejection of a claim of an involved application, the examiner must enter and maintain the recommended rejection unless an amendment or showing of facts not previously of record is filed which, in the opinion of the examiner, overcomes the recommended rejection.


Jurisdiction over an application returns to the examiner once the interference has terminated. If there is a recommendation for further action in the application, the examiner must reopen prosecution to consider the recommendation. The examiner must enter any recommended rejection, and must maintain the rejection unless the applicant by amendment or submission of new evidence overcomes the rejection to the examiner’s satisfaction. Moreover, in the first action after termination of an interference or derivation, the examiner should make of record in each application all references not already of record which were pertinent to any preliminary motions and which were discussed in the decision on motion.

If there is no recommendation in the judgment, the examiner should update the search and may, but is not required to, reopen prosecution for any claim not disposed of in the judgment.

An interference judgment simply resolves any question of priority between the two parties to the interference. The judgment does not prevent the examiner from making a rejection in further examination in the same application or a different application. If a party loses on an issue in the interference, the examiner should reject any claim for which allowance would be inconsistent with the interference judgment.

Form paragraph 23.02 may be used to resume ex parte prosecution.

¶ 23.02    Ex Parte Prosecution Is Resumed

Interference No. [1] has been terminated by a decision [2] to applicant. Ex parte prosecution is resumed.

Examiner Note:

1. In bracket 1, insert the interference number.

2. In bracket 2, insert whether favorable or unfavorable.