How does the filing date of a divisional application affect the safe harbor protection?
How does the filing date of a divisional application affect the safe harbor protection?
The filing date of a divisional application is crucial for determining whether it qualifies for the safe harbor protection under 35 U.S.C. 121. According to MPEP 804.01:
“The U.S. Court of Appeals for the Federal Circuit has concluded that the protection of 35 U.S.C. 121 does not extend to all types of continuing applications, stating 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.'”
Key points about the filing date and safe harbor protection:
- The divisional application must be filed before the issuance of the patent on the other application.
- If filed after the issuance of the patent on the other application, the safe harbor protection does not apply.
- The filing date must be within the pendency of the original application.
- Filing a divisional of a divisional may still qualify for protection if it meets all other requirements.
Patent applicants should carefully consider the timing of filing divisional applications to ensure they maintain the safe harbor protection against double patenting rejections.
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