How does an examiner determine if an application may be a divisional?

Patent examiners use specific criteria to determine if an application may qualify as a divisional. According to MPEP ¶ 2.01, an examiner looks for the following indicators:

1. The application claims only subject matter disclosed in a prior application.
2. The claimed subject matter appears to be independent and distinct from that claimed in the prior application.
3. At least one inventor from the prior application is named in the current application.

The MPEP provides guidance to examiners:

“This form paragraph should only be used if it appears that the application may be a divisional, but a benefit claim has not been properly established.”

If these conditions are met, but a proper benefit claim hasn’t been made, the examiner may use this paragraph to notify the applicant of the possible divisional status and the need to establish a benefit claim if desired.

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