What should a patent examiner do if an application appears to be a divisional but lacks a proper benefit claim?

When a patent examiner encounters an application that appears to be a divisional but lacks a proper benefit claim, they should follow the guidance provided in MPEP ¶ 2.01. The MPEP states:

“This form paragraph should only be used if it appears that the application may be a divisional, but a benefit claim has not been properly established.”

In such cases, the examiner should:

1. Recognize that the application may potentially be a divisional based on its content and relationship to a prior application.
2. Note that the applicant has not properly established a benefit claim to the prior application.
3. Use the appropriate form paragraph (as mentioned in MPEP ¶ 2.01) to inform the applicant about the potential divisional status and the need to establish a proper benefit claim.
4. Direct the applicant’s attention to the relevant laws and regulations for claiming benefit, specifically: 35 U.S.C. 120, 37 CFR 1.78, and MPEP § 211 et seq.

By following these steps, the examiner ensures that the applicant is aware of the potential divisional status and has the opportunity to properly establish the benefit claim if desired.

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