Washington Law Review


This Note examines the current U.S. Patent and Trademark Office standards for determining patent priority in an interference proceeding. In particular, this Note reviews and criticizes the procedural rules governing the implementation of summary judgment in an interference. In Schendel v. Curtis, the U.S. Court of Appeals for the Federal Circuit had the opportunity to articulate a clear analytical framework to guide Administrative Patent Judges in the determination of what experimental evidence, and how much of it, a party must present to establish a prima facie showing of reduction to practice. This Note argues that, in an interference proceeding, once a party has argued with particularity that certain evidence is sufficient to establish reduction to practice of the invention in dispute, then the Administrative Patent Judge should explicitly state for the record why that evidence is insufficient. In addition, Administrative Patent Judges should conform to the same summary judgment standards that federal judges use in deciding whether to impose summary judgment against a non-moving party: all inferences drawn from underlying facts should be viewed in the light most favorable to the party against whom summary judgment is being applied.

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