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ARTICLE · 23 JANUARY 2023

Swing And A Miss: Failed Interferences Don't Affect Later Ones

McDermott Will & Emery
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The US Court of Appeals for the Federal Circuit affirmed the Patent Trial & Appeal Board's (Board) interference decision finding that priority belonged to the junior party based on sufficiently corroborated...

United StatesIntellectual Property
Michael J. Baldwin
Michael J. Baldwin

The US Court of Appeals for the Federal Circuit affirmed the Patent Trial & Appeal Board's (Board) interference decision finding that priority belonged to the junior party based on sufficiently corroborated reduction to practice. Dionex Softron GmbH v. Agilent Technologies Inc., Case No. 21-2372 (Fed. Cir. Jan. 6, 2023) (Reyna, Chen, Stark, JJ.)

Both parties attempted to instigate an interference by copying each other's claims regarding a method of operating a liquid chromatography system. Agilent first substantially copied Dionex's claims but failed to secure declaration of an interference and subsequently amended its claims. Dionex then copied verbatim Agilent's amended claims, successfully provoking an interference. The Board identified Dionex as the senior party and Agilent as the junior, placing the burden for priority on Agilent.

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