Can an examiner determine if an application is a continuation-in-part?

Yes, patent examiners can make a preliminary determination about whether an application might qualify as a continuation-in-part (CIP). The MPEP ¶ 2.06 provides guidance for examiners, stating:

This form paragraph should only be used if it appears that the application may qualify as a continuation-in-part, but no benefit claim has been properly established.

Examiners typically look for the following indicators:

• Substantial repetition of content from a prior application
• Addition of new disclosure not present in the prior application
• At least one common inventor with the prior application

However, it’s important to note that the final determination of an application’s status as a CIP depends on the applicant’s claims and proper benefit claims being established. Examiners may use this paragraph to alert applicants to the possibility of CIP status and the need to properly claim benefit if desired.