Can I file a priority claim in a continuation or divisional application?

Yes, you can file a priority claim in a continuation or divisional application, but there are specific rules you must follow. According to MPEP 214.01:

‘In the case of a continuation or divisional application filed under 35 U.S.C. 111(a), the claim for priority must be made during the pendency of the application and within the four-month period set forth in 37 CFR 1.55(d)(1).’

This means:

• The priority claim must be made while the continuation or divisional application is still pending (not abandoned or issued).
• You have a four-month window from the actual filing date of the continuation or divisional application to make the priority claim.
• The priority claim should refer back to the foreign application through the parent application(s).

It’s important to note that the continuation or divisional application must have copendency with the parent application to maintain the priority chain. Always consult the latest version of the MPEP and consider seeking advice from a patent attorney to ensure compliance with current USPTO rules.

To learn more:

• continuation application
• divisional application
• priority claim
• copendency