Does the 35 U.S.C. 121 safe harbor protection apply to all types of continuing applications?

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.

No, the safe harbor protection of 35 U.S.C. 121 does not apply to all types of continuing applications. According to the MPEP, the Federal Circuit has concluded 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 the safe harbor protection does not extend to other types of continuing applications, such as continuation or continuation-in-part applications. It’s important to note that the protection is specifically for divisional applications filed in response to a restriction requirement made by the USPTO.