What are Divisionals, Continuations, and Continuations-In-Part?
Divisionals, Continuations, and Continuations-In-Part (CIP) are all continuing patent applications that stem from an earlier patent application. The divisional, continuation, or CIP must claim priority to the earlier patent application, and therefore they must be filed when the earlier patent application is still pending.
A divisional patent application is filed when the earlier patent application was issued a Restriction Requirement. A Restriction Requirement is a document mailed by the Patent Office and it states that the patent application includes more than one invention. As a result, we must pick, or elect, only one invention for the patent application and cancel the claims to the other invention(s). In order to seek patent protection on the invention that is not chosen, we must then file a new divisional patent application that includes the non-elected invention(s).
A continuation is a re-filing of an existing patent application. The continuation application will receive a new serial number and will technically be a different patent application than the first one, but the subject matter in the continuation is the same as in the earlier parent application. Continuations used to be filed on a fairly regular basis as part of a procedural strategy before the Patent Office, but that practice has dropped off in favor or other procedural mechanisms that are now available and better options.
A continuation-in-part, or CIP, is a patent application that includes the same subject matter as an earlier patent application, but it also includes new subject matter. If you have made improvements to your invention after you filed a utility patent application, then in order to protect those improvements it might be necessary to file a CIP application and discuss those improvements in the CIP. Filing dates are determined on a claim-by-claim basis, and publications of your earlier patent applications can become prior art against you in some circumstances. As a result, there may be a limited window of time for filing a CIP. Not every patent attorney realizes this, but fortunately neither do many patent examiners.
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