What is a ‘substitute’ application in patent law?
A ‘substitute’ application in patent law is essentially a duplicate of an earlier application that was abandoned before the filing of the later application. The MPEP provides the following definition:
A “substitute” application is in essence the duplicate of an application by the same applicant abandoned before the filing of the later application.
Key points about substitute applications:
- It does not obtain the benefit of the filing date of the prior application
- Current practice does not require applicants to insert references to the earlier application in the specification
- Applicants should call attention to the earlier application
The USPTO uses a specific form paragraph (2.07) to remind applicants of possible substitute status:
Applicant refers to this application as a “substitute” of Application No. [1], filed [2]. The term “substitute” is used to designate an application which is in essence the duplicate of an application by the same applicant abandoned before the filing of the later application. A “substitute” does not obtain the benefit of the filing date of the prior application.
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