What is the copendency requirement for claiming benefit of a nonprovisional 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.

Copendency is a crucial requirement when claiming the benefit of a prior-filed nonprovisional application under 35 U.S.C. 120, 121, 365(c), or 386(c). The MPEP defines copendency as follows:

“Copendency is defined in the clause which requires that the later-filed application must be filed before: (A) the patenting of the prior application; (B) the abandonment of the prior application; or (C) the termination of proceedings in the prior application.”

Key points about copendency:

• The later-filed application must be filed before the prior application patents, is abandoned, or proceedings are terminated
• If the prior application issues as a patent, the later-filed application can be filed on the same date the patent issues
• If the prior application is abandoned, the later-filed application must be filed before the abandonment
• Without copendency, the later-filed application cannot claim the benefit of the prior application’s filing date

Applicants should be aware of the copendency requirement to ensure their benefit claims are valid.