How does claiming benefit of an earlier filing date work for continuing applications?

Claiming the benefit of an earlier filing date for continuing applications (continuation, divisional, and continuation-in-part) is governed by 35 U.S.C. 120 and 37 CFR 1.78. Key points include:

• The continuing application must be filed before the patenting, abandonment, or termination of proceedings on the prior application.
• The continuing application must contain a specific reference to the prior application.
• For applications filed on or after September 16, 2012, the specific reference must be included in an application data sheet (ADS).
• For applications filed before September 16, 2012, the specific reference must be in the first sentence(s) of the specification or in an ADS.
• The continuing application must have at least one common inventor with the prior application.

As stated in the MPEP:

A continuation or divisional application that names as inventors the same or fewer than all of the inventors named in the prior application may be filed under this paragraph or paragraph (d) of this section.

It’s important to note that for continuation-in-part applications, any claims that rely on new matter added in the CIP will not be entitled to the benefit of the earlier filing date of the parent application.

For more information on patent application types, visit: patent application types.