What’s the difference between statutory and nonstatutory double patenting?
The main differences between statutory and nonstatutory double patenting are:
- Statutory double patenting: Based on 35 U.S.C. 171, it applies when identical designs with identical scope are claimed twice. It cannot be overcome by a terminal disclaimer.
- Nonstatutory double patenting: Based on judicial doctrine, it applies to designs with different appearances or differing scope that are patentably indistinct. It can be overcome by filing a terminal disclaimer.
The MPEP states: A “same invention” type double patenting rejection, whether statutory or nonstatutory, cannot be overcome by a terminal disclaimer.
However, for nonstatutory double patenting: Nonstatutory categories of double patenting rejections which are not the “same invention” type may be overcome by the submission of a terminal disclaimer.
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