MPEP 2301.04
Applicability of

This is the Ninth Edition of the MPEP, Revision 08.2017, Last Revised in January 2018

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2301.04    Applicability of 35 U.S.C. 102(g) to Applications filed on or after March 16, 2013 [R-08.2017]

Applications subject to current 35 U.S.C. 102 (see MPEP § 2159) may also be subject to an interference.

Even if current 35 U.S.C. 102 and 103 apply to a patent application, pre-AIA 35 U.S.C. 102(g) also applies to every claim in the application if it: (1) contains or contained at any time a claimed invention having an effective filing date as defined in 35 U.S.C. 100(i) that occurs before March 16, 2013; or (2) is ever designated as a continuation, divisional, or continuation-in-part of an application that contains or contained at any time such a claim. Pre-AIA 35 U.S.C. 102(g) also applies to any patent resulting from an application to which pre-AIA 35 U.S.C. 102(g) applied. See MPEP §§ 2138 and 2159.03.

Thus, if an application contains, or contained at any time, a claim having an effective filing date that occurs before March 16, 2013, and also contains, or contained at any time, a claim having an effective filing date that is on or after March 16, 2013, each claim may still be subject to an interference in accordance with pre-AIA 35 U.S.C. 102(g) while the application is also subject to current 35 U.S.C. 102 and 103. Pub. L. 112-29, § 3(n)(2), 125 Stat. at 293.

Where an application not subject to pre-AIA 35 U.S.C. 102(g) interferes with a patent subject to pre-AIA 35 U.S.C. 102(g), the examiner should consult with an Interference Practice Specialist.