What are the conditions for maintaining 35 U.S.C. 121 safe harbor protection?
What are the conditions for maintaining 35 U.S.C. 121 safe harbor protection?
To maintain the safe harbor protection provided by 35 U.S.C. 121, certain conditions must be met. According to MPEP 804.01, the following conditions are crucial:
- The divisional application must be filed before the issuance of the patent on the other application.
- The divisional application must not contain claims drawn to inventions other than the one identified in the restriction requirement as being elected.
- The divisional application must not itself be subject to a restriction requirement.
- The patent issuing from the divisional application must not contain a claim that is anticipated by or obvious over a claim in the patent used as a reference.
The MPEP states:
“The protection of 35 U.S.C. 121 does not extend to all types of continuing applications… If an applicant files more than one continuation application after a restriction requirement, none of the continuation applications are shielded by the safe harbor provision.”
It’s important to note that any deviation from these conditions may result in the loss of safe harbor protection.
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