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New USPTO Definition: A Potential Mine Field

Law360 (October 24, 2007, 12:00 AM EDT) -- In the new rules to take effect on November 1, 2007, the U.S. Patent and Trademark Office (“USPTO”) has set forth a new definition of the divisional application which could lead to potential misunderstandings by practitioners and dire consequences to applicants.

Under past practice, the USPTO broadly defined divisional applications in M.P.E.P. § 201.06 as later-filed applications containing claims to independent or distinct inventions, whether or not a restriction requirement was made in an earlier application.

It was widely recognized that a so-called “voluntary divisional,” which was...
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