The U.S. patent office has the reputation of being a fair institution. Some would even complain it is overly lenient, having granted many questionable Internet, software and business method patents over the years.
However, one part of the office is anything but lenient. And if you want to know how difficult it is to get assistance--or even justice--from the PTO's Board of Patent Appeals and Interferences (BPAI), just ask Stuart Edwards.
Interferences allow companies to resolve their patent disputes quickly and at approximately one-tenth the cost of litigation. And because administrate judges with extensive patent and scientific experience make the BPAI's decisions, the BPAI "is more likely to accurately apply the law," says Charles (Chico) Gholz, who heads the interference section of Oblon, Spivak, McClelland, Maier & Neustadt.
In some circumstances, a company can't go to court, and only can get relief in an interference proceeding. Suppose, for instance, that a large pharmaceutical company named Gnu discovers a very promising new drug, but the drug may run afoul of a patent on a very similar drug, owned by a competitor named Olde.
The BPAI claims there's nothing new about the two-way test.
"The test for declaring an interference has always been two-way," Torczon says. "The new rule states the two-way test requirement more clearly to counteract misinterpretations by some practitioners of the old rule as a one-way test."