What is a terminal disclaimer and how does it affect patent rights?
A terminal disclaimer is a legal document filed by a patent applicant or owner to overcome a nonstatutory double patenting rejection. Key points about terminal disclaimers include:
- It disclaims the terminal portion of the patent term that would extend beyond the expiration date of the reference patent or application
- It ensures common ownership of the application and the reference patent/application
- It does not affect the validity or enforceability of the patent during its shortened term
As stated in MPEP 804: “A terminal disclaimer, submitted in compliance with 37 CFR 1.321(c) or (d) to overcome a double patenting rejection, includes a provision that the patent or any patent issuing from the application is only enforceable for and during such period that it is owned by the same party (or parties) that owns the other patents or applications, identified in the terminal disclaimer, that claim obvious variations of one invention.”
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