By Charles L. Gholz
Introduction
This article is a follow-on to Gholz & Pike, Targeting Applicants Should Be Expressly Authorized to File 37 CFR 1.313 Petitions to Withdraw Target Applications From Issuance for Consideration of a Possible Interference, 10 Intellectual Property Today No. 11 at page 12 (2003). In that article, we argued that:
There is a strong public interest in deciding whether two applications interfere before either application matures into a patent--particularly when the target application is at least prima facie junior to the targeting application.3
This article deals with a related, but different issue: Petitions to have a targeting application (i.e., an application in which a suggestion of interference has been filed) and a target application (i.e., the application with which the targeting applicant has sought an interference) assigned to the same examiner for ex parte prosecution.
What the MPEP Says
Section 2304.01(b), "Obtaining Control Over Involved Files," says that:
Ordinarily applications that are believed to interfere should be assigned to the same examiner. [Emphasis supplied.]
Moreover, in language that emphasizes the importance of that policy, that section continues...
