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Parent patent app. a 102(b) ref. to a CIP?
Posted by Anonymous . updated on 2/26/2009
If you file a continuation-in-part application having new matter, can the publication of the parent application be considered prior art under 35 USC 102(b) such that the parent patent application publication can be used in a obviousness rejection under 35 USC 103? It would seen to me that as you are claiming priority to the parent application (and therfore have the same term as the parent), you should be entitled not have what was disclosed by you in the parent be used as prior art against you. Otherwise, why would you file a CIP and not just file an new application?
Answers (2)
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Isaac
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It's important to note that priority in a CIP is on a claim by claim
basis. Claims that rely on the added subject matter do not get the
benefit of priority.
As for your question about the reasons for filing a CIP. It's sometimes
the case that filing a CIP provides no useful benefit in priority, and
at the same time results in a shortened patent term. In those
cases, it may not make sense to file a CIP. OTOH a CIP does
keep a copending continuation around.
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Jake Bl...
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Just to follow up on this thread, can the published application of the parent patent be used to reject claims on the CIP under 103?
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