What is the effect of a preliminary amendment filed with a continuation or divisional application?

A preliminary amendment filed with a continuation or divisional application can have significant effects:

1. If present on the filing date, it is considered part of the original disclosure.
2. It must comply with the requirements of 37 CFR 1.121 for amendments.
3. The Office may require a substitute specification for extensive preliminary amendments.
4. The application will be classified and assigned based on the claims that will be before the examiner after entry of the preliminary amendment.

The MPEP states: Any preliminary amendment that is present on the filing date of an application filed under 37 CFR 1.53(b) is part of the original disclosure.

However, applicants should be cautious about introducing new matter through a preliminary amendment. The MPEP advises: Where a copy of the oath or declaration from a prior application was filed in a continuation or divisional application, if the examiner determines that new matter is present relative to the prior application, the examiner should so notify the applicant in the next Office action (preferably the first Office action). The examiner should require applicant to delete the benefit claim or redesignate the application as a continuation-in-part.

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

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

For more information on new matter, visit: new matter.