Can a priority claim be made in a continuation or divisional application?

Can a priority claim be made in a continuation or divisional application?

Yes, a priority claim can be made in a continuation or divisional application. However, there are specific requirements and time limits to consider. According to MPEP 214.01:

“In the case of a continuation or divisional application, the claim for priority must be made during the pendency of the application.”

This means:

• The priority claim must be filed within the later of four months from the actual filing date of the continuation or divisional application or sixteen months from the filing date of the prior foreign application.
• If the claim is filed outside this period, it will be considered untimely and require a petition under 37 CFR 1.55(e).
• The priority claim should reference the parent application if it properly claimed the benefit of the foreign application.

It’s important to note that the continuation or divisional application must be filed within 12 months of the foreign application’s filing date (or 6 months for design applications) to be eligible for priority.