35 U.S.C. § 121 — Divisional applications (MPEP Coverage Index) – BlueIron IP
35 U.S.C. § 121 Divisional applications
This page consolidates MPEP guidance interpreting 35 U.S.C. § 121, including 193 rules 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.
Summary
Divisional applications cannot provide safe harbor protection against nonstatutory double patenting, requiring careful amendment of claims in continuation-in-part applications.
What this section covers
- This section covers divisional applications and their relation to nonstatutory double patenting, focusing on the grounds for filing such applications.
Key obligations
- Patentees cannot obtain safe harbor protection against nonstatutory double patenting by amending a patent from a continuation-in-part application.
- Ensure that any amendments do not inadvertently create new claims that could be subject to nonstatutory double patenting.
- Comply with 35 U.S.C. 121 regarding divisional applications.
Practice notes
- Ensure that any amendments to a continuation-in-part application do not inadvertently create new claims that could be subject to nonstatutory double patenting.
- Carefully review and amend claims in continuation-in-part applications to avoid creating new claims that could be subject to nonstatutory double patenting.
Official MPEP § 121 — Divisional applications
Source: USPTOLast Modified: 10/30/2024 08:50:22
35 U.S.C. 121 Divisional applications.
[Editor Note: Applicable to any patent application filed on or after September 16, 2012. See 35 U.S.C. 121 (pre‑AIA) for the law otherwise applicable.]
If two or more independent and distinct inventions are claimed in one application, the Director may require the application to be restricted to one of the inventions. If the other invention is made the subject of a divisional application which complies with the requirements of section 120 it shall be entitled to the benefit of the filing date of the original application. A patent issuing on an application with respect to which a requirement for restriction under this section has been made, or on an application filed as a result of such a requirement, shall not be used as a reference either in the Patent and Trademark Office or in the courts against a divisional application or against the original application or any patent issued on either of them, if the divisional application is filed before the issuance of the patent on the other application. The validity of a patent shall not be questioned for failure of the Director to require the application to be restricted to one invention.
(Amended Jan. 2, 1975, Public Law 93-596, sec. 1, 88 Stat. 1949; Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-582 (S. 1948 sec. 4732(a)(10)(A)); amended Sept. 16, 2011, Public Law 112-29, secs. 4(a) and 20(j) (effective Sept. 16, 2012), 125 Stat. 284.)
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