How does small entity status carry over to continuation applications?

Small entity status does not automatically carry over from a parent application to a continuation application. The MPEP provides clear guidance on this matter:

If small entity status has been established in a parent application and is still proper and desired in a continuation, continuation-in-part, or divisional application filed under 37 CFR 1.53(b), a new assertion as to the continued entitlement to small entity status under 37 CFR 1.27 is required.

This means that applicants must take specific steps to maintain small entity status in a continuation application:

1. Review Eligibility: Ensure that the applicant still qualifies for small entity status under the current rules.
2. New Assertion: File a new assertion of entitlement to small entity status in the continuation application.
3. Timing: This assertion should be made at the time of filing the continuation application or with the first fee payment.

It’s important to note that improperly claiming small entity status can have serious consequences, including the patent being held unenforceable. Therefore, applicants should carefully review their status before making a new assertion in a continuation application.

For micro entity status, the requirements are even more stringent:

The refiling of an application under 37 CFR 1.53 as a continuation, divisional, or continuation-in-part application (including a continued prosecution application under 37 CFR 1.53(d) (design applications only)), requires a new certification of entitlement to micro entity status in the continuing application.

Applicants should be diligent in properly asserting and maintaining their entity status throughout the patent application process, including when filing continuation applications.

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

For more information on patent fees, visit: patent fees.