Washington Journal of Law, Technology & Arts


Businesses that launch new products or services generally understand the risk of suits for patent infringement from competitors and other patent holders. Such risks are especially high when the first business (“challenger,”) holds no patents on the product or service. However, commercializers that do have patents or patent applications covering their new product or service may be less aware of another lurking risk: a competitor or other party (“challenger,”) owning a separate patent application. In such a scenario, a challenger may provoke a patent interference proceeding to challenge the date of invention for the commercializer’s patent or patent application. This Article explores these potential scenarios and analyzes limitations to a challenger’s ability to aggressively provoke an interference proceeding.

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