Is it possible to institute a derivation proceeding when none of a petitioner's claims are in condition for allowance?

The correct answer reflects that each case is evaluated based on its particular facts when considering the institution of a derivation proceeding. In the context of patent law, particularly under the Leahy-Smith America Invents Act (AIA), a derivation proceeding allows a party to challenge a patent on the grounds that the petitioner (the party requesting the proceeding) is the true inventor of the invention claimed in the patent.

In the case where none of the petitioner's claims are in condition for allowance, the specific circumstances and facts surrounding the case will determine whether a derivation proceeding can still be instituted. This means that the assessment is not only based on the claims themselves but also considers various factors such as the timeline of the invention, the disclosures made, and the relationship between the parties involved.

Thus, the flexibility within this context allows the Petitioner to potentially demonstrate that even without claims being in condition for allowance, there could still be valid grounds for a derivation proceeding. Each scenario is evaluated individually, which supports the assertion that a derivation proceeding could indeed be initiated depending on the unique facts presented in that specific case.