What is the “safe harbor” provision in 35 U.S.C. 121?
What is the “safe harbor” provision in 35 U.S.C. 121?
The “safe harbor” provision in 35 U.S.C. 121 protects patent applications and patents that result from restriction requirements. As stated in MPEP 804.01:
“35 U.S.C. 121 provides that:
If two or more independent and distinct inventions are claimed in one application, the Director may require the application to be restricted to one of the inventions. If the other invention is made the subject of a divisional application which complies with the requirements of section 120 it shall be entitled to the benefit of the filing date of the original application. A patent issuing on an application with respect to which a requirement for restriction under this section has been made, or on an application filed as a result of such a requirement, shall not be used as a reference either in the Patent and Trademark Office or in the courts against a divisional application or against the original application or any patent issued on either of them, if the divisional application is filed before the issuance of the patent on the other application.”
This provision prevents the use of a patent issuing from an application subject to a restriction requirement as a reference against a divisional application or the original application, provided the divisional is filed before the issuance of the patent on the other application.
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