How does filing a continuation or divisional application affect the status of the prior application?

Filing a continuation or divisional application under 37 CFR 1.53(b) does not automatically abandon the prior application. The status of the prior application depends on the actions taken by the applicant:

1. The prior application remains pending unless expressly abandoned.
2. To expressly abandon the prior application, a separate paper must be filed and signed in accordance with 37 CFR 1.138.
3. If a notice of allowance has been issued in the prior application, it can become abandoned by nonpayment of the issue fee.

The MPEP states: Under 37 CFR 1.53(b) practice, the prior nonprovisional application is not automatically abandoned upon filing of the continuing application. If the prior nonprovisional application is to be expressly abandoned, such a paper must be signed in accordance with 37 CFR 1.138.

It’s important to note that if the issue fee has been paid in the prior application, a petition to withdraw the application from issue must be filed before it can be abandoned, even if a continuing application has been filed.

For more information on continuation application, visit: continuation application.

For more information on Divisional application, visit: Divisional application.