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

The correct answer reflects the fact that a derivation proceeding can indeed be initiated regardless of whether the petitioner's claims are in condition for allowance. The United States Patent and Trademark Office (USPTO) allows derivation proceedings when a party believes that an inventor improperly derived the subject matter claimed in a previously filed application from their own invention. Each case in a derivation proceeding is evaluated based on its specific facts, meaning the circumstances of each situation will dictate whether the proceeding is warranted or not.

This is important because it emphasizes the focus of derivation proceedings on the factual context of the claims and the parties involved, rather than strictly on the procedural status of the claims being in condition for allowance. Therefore, the possibility of initiating a derivation proceeding underlines the importance of addressing the issues surrounding priority and derivation, irrespective of the allowability of claims at the point of initiation.

By evaluating the particulars of each case, the USPTO aims to ensure that proper inventorship is recognized while protecting inventors from actions that may unjustly deprive them of their rights based on previous disclosures.