What happens to terminal disclaimers in a divisional application?

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.

Terminal disclaimers filed in a parent application do not automatically carry over to a divisional application. The MPEP 201.06 states:

‘A terminal disclaimer filed to obviate a nonstatutory double patenting rejection in a parent application does not carry over to a divisional application. The applicant filing the divisional application must determine whether a new terminal disclaimer needs to be filed in the divisional application.’

This means:

• Terminal disclaimers from the parent application are not automatically applied to the divisional
• The applicant must assess whether a new terminal disclaimer is necessary for the divisional application
• If required, a new terminal disclaimer must be filed specifically for the divisional application

It’s important for applicants to review potential double patenting issues in the divisional application and file new terminal disclaimers if needed to overcome any rejections.