2304.01(d) Sorting Claims [R-08.2017]
An applicant may be entitled to a day-for-day patent term adjustment for any time spent in an interference. If an applicant has several related applications with interfering claims intermixed with claims that do not interfere, the examiner should consider whether the interfering claims should be consolidated in a single application or whether an application should be restricted to claims that do not interfere. This way examination can proceed for any claims that do not interfere without the delay that will result from the interference.
Interfering claims of applications with either the same assignee or the same inventive entity are "patentably indistinct claims" within the meaning of 37 CFR 1.78(f). The examiner may require consolidation of such claims into a single application that provides support for the patentably indistinct claims. See 35 U.S.C. 132(a).
Similarly, the examiner should require an applicant to restrict an application to the interfering claims in accordance with pre-AIA 35 U.S.C. 121, in which case the applicant may file a divisional application for the claims that do not interfere.
Sorting of claims may not be appropriate in all cases. For instance, a claim should not be consolidated into an application that does not provide support under 35 U.S.C. 112(a) for the claim.