How does filing a continuing application affect patent term adjustment?
Filing a continuing application can significantly impact patent term adjustment. According to 37 CFR 1.704(c)(14):
“Further prosecution via a continuing application, in which case the period of adjustment set forth in 37 CFR 1.703 shall not include any period that is prior to the actual filing date of the application that resulted in the patent.”
This means:
- Any patent term adjustment accrued in a parent application does not carry over to a continuing application.
- The patent term adjustment calculation for a continuing application starts from its actual filing date, not the filing date of the parent application.
- This applies to continuation applications, divisional applications, and continuation-in-part applications.
The MPEP explains the rationale: “If an applicant is filing a continuing application to obtain examination (for the first time) of an invention disclosed but not claimed or not elected for examination in the prior application or an invention neither disclosed nor claimed in the prior application, it is not appropriate for that applicant to obtain any benefit in the continuing application for examination delays that might have occurred in the prior application.”
This provision encourages applicants to pursue their inventions diligently in the original application rather than relying on continuing applications to extend patent term.
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