SNIPR TECHNOLOGIES LIMITED v. ROCKEFELLER UNIVERSITY, (Fed. Cir 7/14/2023)
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Rick Neifeld
Jul 14, 2023, 8:03:34 PM7/14/23
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FYI - The relevant excerpts from SNIPR.
Because the text, purpose, and history of the
AIA make clear that first-inventor-to-file patents exclu-
sively governed by the AIA cannot be subject to an inter-
ference (save for one exception not applicable here), we
reverse.
***
Pure AIA patents and applications: patents
and applications that have only ever contained
claims with post-AIA effective filing dates (i.e., on
or after March 16, 2013) are subject to the patent-
ability requirements and derivation proceedings in
the AIA versions of 35 U.S.C. §§ 102, 103, 135, and
291. AIA § 3(n)(1).
***
Read together, AIA § 3(n)(1) and AIA § 3(n)(2)’s limited
exception create two separate worlds for interferences:
pure pre-AIA and mixed patents are subject to interfer-
ences; pure AIA patents are not.10 Accordingly, we con-
clude that the AIA bars pure AIA patents from being
subject to an interference.
***
Under Rockefeller’s and the Director’s interpre-
tation of “any unexpired patent” in pre-AIA § 135 as en-
compassing any pure pre-AIA, mixed, or pure AIA patent,
AIA § 3(n)(2) would not be necessary to subject mixed pa-
tents to interferences. We reject an interpretation that
would render AIA § 3(n)(2) superfluous.11 Accordingly, we
conclude that “any unexpired patents” in pre-AIA § 135
does not include pure AIA patents.
Because the text, purpose, and history of the
AIA make clear that first-inventor-to-file patents exclu-
sively governed by the AIA cannot be subject to an inter-
ference (save for one exception not applicable here), we
reverse.
***
Pure AIA patents and applications: patents
and applications that have only ever contained
claims with post-AIA effective filing dates (i.e., on
or after March 16, 2013) are subject to the patent-
ability requirements and derivation proceedings in
the AIA versions of 35 U.S.C. §§ 102, 103, 135, and
291. AIA § 3(n)(1).
***
Read together, AIA § 3(n)(1) and AIA § 3(n)(2)’s limited
exception create two separate worlds for interferences:
pure pre-AIA and mixed patents are subject to interfer-
ences; pure AIA patents are not.10 Accordingly, we con-
clude that the AIA bars pure AIA patents from being
subject to an interference.
***
Under Rockefeller’s and the Director’s interpre-
tation of “any unexpired patent” in pre-AIA § 135 as en-
compassing any pure pre-AIA, mixed, or pure AIA patent,
AIA § 3(n)(2) would not be necessary to subject mixed pa-
tents to interferences. We reject an interpretation that
would render AIA § 3(n)(2) superfluous.11 Accordingly, we
conclude that “any unexpired patents” in pre-AIA § 135
does not include pure AIA patents.
--
Best regards, Rick Neifeld, Ph.D., Patent Attorney
Neifeld IP Law PLLC
9112 Shearman Street, Fairfax VA 22032-1479, United States
Office: 1-7034150012
Mobile: 1-7034470727
Fax: 1-5712810045
Email: rnei...@neifeld.com
Web: https://neifeld.com/
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