How does a restriction requirement affect the safe harbor provision of 35 U.S.C. 121?
How does a restriction requirement affect the safe harbor provision of 35 U.S.C. 121?
A restriction requirement plays a crucial role in triggering the safe harbor provision of 35 U.S.C. 121. According to MPEP 804.01:
“The protection of 35 U.S.C. 121 does not extend to all types of continuing applications, stating that ‘the protection afforded by section 121 to applications (or patents issued therefrom) filed as a result of a restriction requirement is limited to divisional applications.'”
Key points about the relationship between restriction requirements and the safe harbor provision:
- The safe harbor only applies to divisional applications resulting from a restriction requirement.
- The divisional application must be filed before the issuance of the patent on the other application.
- The claims in the divisional must be consonant with the restriction requirement.
- The protection does not extend to continuation applications or continuation-in-part applications.
Understanding this relationship is crucial for patent applicants to properly navigate the prosecution process and maintain the protection against double patenting rejections.
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