How can a double patenting rejection be overcome?
A double patenting rejection can be overcome by:
- Filing a terminal disclaimer in accordance with 37 CFR 1.321(c) or (d)
- Amending or canceling claims to eliminate the double patenting issue
- Showing that the inventions are patentably distinct
The MPEP states: Nonstatutory double patenting rejections can be overcome in certain circumstances by disclaiming, pursuant to the provisions of 37 CFR 1.321(c), the terminal portion of the term of the later patent and including in the disclaimer a provision that the patent shall be enforceable only for and during the period the patent is commonly owned with the application or patent which formed the basis for the rejection, thereby eliminating the problem of extending patent life.
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