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On solid ground: double patenting safe harbour applies to election of species

01-11-2013

On solid ground: double patenting safe harbour applies to election of species

The US Court for the Federal Circuit ruled in September on an important double patenting case. Garth Dahlen takes a look.

In a decision rendered on September 11, 2013, the US Court of Appeals for the Federal Circuit reversed the district court’s ruling that claims in a first sibling patent (Janzen patent) were protected under the safe-harbour provision of 35 USC §121 from invalidity due to double patenting over claims in a related second sibling patent.

This case is particularly important in areas such as biotechnology, wherein patent examiners often issue a restriction requirement in combination with an election of species requirement.

The safe-harbour provision can be invoked when a line of demarcation between independent and distinct inventions that prompted a restriction requirement in a parent application has been maintained as between the parent application and the offspring application(s). When this line of demarcation has been maintained, the relevant patents are said to meet the requirement for consonance. 


Patent, US Court of Appeals, Access Closure Inc, Janzen patent

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