Interference
An interference is a contest between an application and either another application or a patent. An interference is declared to assist the Director of the United States Patent and Trademark Office in determining priority, that is, which part first invented the claimed invention within the meaning of the Patent Act before March 2013. This system followed the "first-to-invent" principle, where the patent was awarded to the first inventor in the event of multiple applications for the same invention. However, the current system in place in the US is the "first-to-file" principle, where the patent is awarded to the person who filed the patent first, regardless of the precedence of the invention. The US had a unique "first-to-invent" principle in 2012 when ToolGen's CRISPR source(pioneer?) patent was filed. Most countries in the world operate a "first-to-file" system, including the US after the revision of the Patent Act in March 2013.
Process of the Interference system
If there are multiple patent applications for the same invention, an interference proceeding can be initiated at the Patent Trial and Appeal Board (PTAB) in the US. The interference proceeding is a two-step process. In the first stage (motion phase), PTAB determines whether the inventions subject to an interference proceeding are the same inventions and who the first filed the patent applicant. If the inventions are not identical, the interference proceeding is terminated. If the inventions are the same, the second step (priority phase) is conducted to determine who the first inventor is among multiple applicants. In the second stage, the junior party (who filed the invention later) first submits a motion claiming to be the first inventor, followed by the senior party (who filed the invention first) claiming the first invention in response. The PTAB will then consider the parties' arguments and evidence to determine who the first inventor is.
If a party is dissatisfied with the decision made by the (PTAB), they may appeal to The Court of Appeals for the Federal Circuit (CAFC) in the US. Similarly, if a party is dissatisfied with the decision made by the CAFC , they may appeal to the Supreme Court of the United States(‘SCOTUS’). These appeal processes allow parties to seek further review and potential reversal of a decision that they believe to be incorrect.
What is current state of ToolGen on the Interference system?
ToolGen is currently involved in patent interference proceedings with two other groups, the Broad Institute Group(‘Broad’) and the University of California Group (CVC), respectively. Both of the inteferences are related to deciding the first inventor of a technology that utilizes the CRISPR/Cas9 system as genetic scissors in eukaryotic cells.
In late September 2022, ToolGen’s status as a senior party is confirmed by PTAB. PTAB issued its ruling on the motion phase, in which ToolGen was recognized as having an earlier filing date for the CRISPR technology for genome editing in eukaryotic cell compared to Broad and CVC.
Being the Senior Party is a highly advantageous and crucial position in the interference proceeding. When it comes to the patent interference proceeding, the burden of proof lies on the junior party to establish that they were the first to invent the claimed technology before the senior party. This puts the junior party at a disadvantage from the start. The junior party must present strong evidence demonstrating that they completed the invention before the senior party, even if their patent application was filed later. Failure to do so will result in the junior party losing their standing in the proceedings. Typically, the first inventor has a higher likelihood of filing a patent application first, and statistically, the senior party has a greater chance (over 75%) of being recognized as the first inventor in the conflict review. Therefore, ToolGen, as the senior party in the interference proceedings with Broad and CVC, holds a favorable position.