How does a voluntary divisional application affect the 35 U.S.C. 121 safe harbor?
How does a voluntary divisional application affect the 35 U.S.C. 121 safe harbor?
A voluntary divisional application, which is not filed in response to a restriction requirement, does not benefit from the safe harbor provision of 35 U.S.C. 121. According to MPEP 804.01:
“The U.S. Court of Appeals for the Federal Circuit has concluded that the protection of 35 U.S.C. 121 does not extend to all types of continuing applications, stating that “the protection afforded by section 121 to applications (or patents issued therefrom) filed as a result of a restriction requirement is limited to divisional applications.”
This means that voluntary divisional applications, continuation applications, and continuation-in-part applications are not protected by the safe harbor provision. Only divisional applications filed in direct response to a restriction requirement can claim this protection.
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