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Using 35 USC 154(d) to Speed Interferences1

By Charles L. Gholz2 and Vincent K. Shier 3

Introduction

If an interference is won by an applicant interferent and the losing party seeks court review of the board's decision, it is the PTO's normal practice to withhold issuance of the winning party's application pending completion of all court review—including disposition of a petition for certiorari.4 Since the prevailing applicant-interferent can't file an infringement action against the losing patentee-interferent until its patent has issued, and since normal infringement damages don't begin accumulating until the patent has issued, this sometimes leads to patentee-interferents' stretching out even hopeless cases as long as possible.

It is the thesis of this article that applicant-interferents can use 35 USC 154(d) to considerably reduce (but not to eliminate) the incentive of patentee-interferents to engage in this socially dysfunctional behavior.

What 35 USC 154(d) Says—And How It Impacts Interferences

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