How does the USPTO handle provisional double patenting rejections?

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.

The USPTO handles provisional double patenting rejections as follows:

• Examiners make a complete examination of claims in each application filed by the same applicant or assignee.
• If patentably indistinct claims are found, appropriate rejections are entered in each application.
• Claims may be rejected on the grounds of provisional double patenting based on the claims of the other application, even if some claims avoid prior art.
• The same prior art may be used in each application where appropriate.

According to MPEP 822: “The provisional double patenting rejection should continue to be made by the examiner in each application as long as there are patentably indistinct claims in more than one application unless that provisional double patenting rejection is the only rejection remaining in one of the applications.”

This approach ensures that each application is thoroughly examined and that potential double patenting issues are addressed early in the examination process.