What happens if a divisional application is filed after the parent application is patented or abandoned?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

If a divisional application is filed after the parent application has been patented or abandoned, it will not be entitled to the benefit of the parent application’s filing date. The MPEP states:

“A divisional application is often filed as a result of a restriction requirement made by the examiner. The divisional application may be filed under 37 CFR 1.53(b) (or 1.53(d) if the application is a design application) before the patenting or abandonment of or termination of proceedings on the original application or on an earlier-filed divisional application directed to the same elected invention.“

Filing a divisional application after the parent application has been patented or abandoned means:

• The application will not be considered a proper divisional application
• It will not receive the benefit of the parent application’s filing date
• It may be treated as a new, independent application
• Prior art that was not applicable to the parent application may now be applicable
• The application may face potential statutory bars under 35 U.S.C. 102

To avoid these issues, it’s crucial to file divisional applications before the patenting, abandonment, or termination of proceedings on the parent application.

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

For more information on late filing, visit: late filing.

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