How does a restriction requirement affect double patenting rejections in divisional applications?
A restriction requirement can provide protection against double patenting rejections in certain divisional applications. The MPEP clarifies:
“Where an applicant files a divisional application claiming a species previously claimed but nonelected in the parent case pursuant to and consonant with a requirement to restrict, a double patenting rejection of the species claim(s) would be prohibited under 35 U.S.C. 121.”
This means that if an applicant files a divisional application claiming a species that was subject to a restriction requirement in the parent application, they are protected from double patenting rejections on those species claims. This protection is based on 35 U.S.C. 121, which safeguards applicants who comply with restriction requirements from facing double patenting issues in subsequent divisional applications.
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