What is the copendency requirement for claiming benefit of a nonprovisional application?

Copendency is a crucial requirement when claiming the benefit of a prior-filed nonprovisional application under 35 U.S.C. 120, 121, 365(c), or 386(c). The MPEP defines copendency as follows:

“Copendency is defined in the clause which requires that the later-filed application must be filed before: (A) the patenting of the prior application; (B) the abandonment of the prior application; or (C) the termination of proceedings in the prior application.”

Key points about copendency:

• The later-filed application must be filed before the prior application patents, is abandoned, or proceedings are terminated
• If the prior application issues as a patent, the later-filed application can be filed on the same date the patent issues
• If the prior application is abandoned, the later-filed application must be filed before the abandonment
• Without copendency, the later-filed application cannot claim the benefit of the prior application’s filing date

Applicants should be aware of the copendency requirement to ensure their benefit claims are valid.