What is a Continuation Patent Application?

A continuation patent applicationpatent and trademark office is a type of continuing application. Yes, “continuation” does have a separate meaning from “continuing,” and each are proper terms in patent-ese. A few weeks ago I wrote about divisional applications, which are another type of continuing application.

A continuation application is an application that continues prosecution of the original subject matter of a previous patent application in a different way. Continuation applications are based on the same disclosure of the previous application, and do not add any new subject matter. Because they rely only on subject matter that was disclosed in the earlier application, continuation applications are entitled to the same priority date – often times – the filing date – of the earlier application. This means that even though a continuation application is filed after an earlier application, it adopts the priority date of the earlier application. Because the Patent Office limits the prior art that can be used against a patent application to art which preceded the priority date of an application, a continuation application which claims benefit to an earlier filing date can be helpful in jumping over, or antedating, prior art.

Continuation applications are often used in a few situations. An examiner will sometimes reject some claims of an application but allow others. If the inventor wants to have a patent issue immediately, the rejected claims can be canceled from the application and then re-filed in a continuation application. A continuation may also be appropriate if the inventor feels that there was subject matter disclosed in the earlier application but not claimed, and that protection for that subject matter should now be sought. Lastly, and similarly to the above point, a continuation is often filed if an earlier application claimed a product or device, but there was a method of using the device that remained unclaimed. Or vice versa. The continuation can claim the method if only the product was claimed earlier, or it can claim the product if only the method was claimed earlier.

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