When can a nonstatutory double patenting rejection be applied to a divisional application?
A nonstatutory double patenting rejection can be applied to a divisional application in specific circumstances. According to the MPEP, “When a claimed invention that was the subject of a restriction requirement in one application is presented in a divisional application, a nonstatutory double patenting rejection cannot be applied to that claimed invention unless the restriction requirement was withdrawn.” However, the MPEP also states that “A nonstatutory double patenting rejection may be appropriate in situations in which the invention presented in the divisional is not the same invention that was the subject of the restriction requirement.” This means that examiners must carefully consider the relationship between the divisional application’s claims and the original restriction requirement before applying a nonstatutory double patenting rejection.
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