This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
Filing a continuation or divisional application under 37 CFR 1.53(b) does not automatically abandon the prior application. The status of the prior application depends on the actions taken by the applicant:
- The prior application remains pending unless expressly abandoned.
- To expressly abandon the prior application, a separate paper must be filed and signed in accordance with 37 CFR 1.138.
- If a notice of allowance has been issued in the prior application, it can become abandoned by nonpayment of the issue fee.
The MPEP states: Under 37 CFR 1.53(b) practice, the prior nonprovisional application is not automatically abandoned upon filing of the continuing application. If the prior nonprovisional application is to be expressly abandoned, such a paper must be signed in accordance with 37 CFR 1.138.
It’s important to note that if the issue fee has been paid in the prior application, a petition to withdraw the application from issue must be filed before it can be abandoned, even if a continuing application has been filed.
For more information on continuation application, visit: continuation application.
For more information on Divisional application, visit: Divisional application.