What should patent examiners consider when determining if an application is a continuation?

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.

Patent examiners should consider several factors when determining if an application may be a continuation. The MPEP ¶ 2.05 provides guidance:

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

Examiners should look for:

• Disclosure of only subject matter from the prior application
• Claims to subject matter disclosed in the prior application
• At least one common inventor with the prior application
• Proper benefit claim to the prior application

If these elements are present but the benefit claim is not properly established, examiners may use the form paragraph to notify the applicant.

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