What’s the difference between statutory and nonstatutory double patenting?

The main differences between statutory and nonstatutory double patenting are:

  • Statutory double patenting: Based on 35 U.S.C. 171, it applies when identical designs with identical scope are claimed twice. It cannot be overcome by a terminal disclaimer.
  • Nonstatutory double patenting: Based on judicial doctrine, it applies to designs with different appearances or differing scope that are patentably indistinct. It can be overcome by filing a terminal disclaimer.

The MPEP states: A “same invention” type double patenting rejection, whether statutory or nonstatutory, cannot be overcome by a terminal disclaimer. However, for nonstatutory double patenting: Nonstatutory categories of double patenting rejections which are not the “same invention” type may be overcome by the submission of a terminal disclaimer.

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Tags: nonstatutory double patenting, statutory double patenting, Terminal Disclaimer