Can a terminal disclaimer be used to overcome a double patenting rejection?
Yes, a terminal disclaimer can be used to overcome a nonstatutory double patenting rejection. By filing a terminal disclaimer, the applicant agrees to limit the term of the later patent to expire at the same time as the earlier patent, thus eliminating the extension of patent rights that would otherwise occur.
The MPEP states: 37 CFR 1.321(c) specifically provides for the filing of a terminal disclaimer in an application or a reexamination proceeding for the purpose of overcoming a nonstatutory double patenting rejection.
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