The
doctrine of obviousness-type double patenting (OTDP) was developed when U.S.
patents had a 17-year patent term. Because that patent term ran from the patent
issue date, the filing of continuation applications on obvious variants of a
previously claimed invention had the potential to extend the patent monopoly
for the invention. The doctrine of OTDP was originally intended to prevent this
result by requiring terminal disclaimers of later, commonly owned patents that
did not claim patentably distinct subject matter over the earlier issued
patents. Thus, in theory at least, all commonly owned patents that relate to a
single invention or its obvious variants would have a single expiration date.
Because the patent term is now 20 years from the first nonprovisional filing
date, later-filed continuations and divisionals will expire on the same date as
a parent patent, unless a patent is awarded patent term adjustment (PTA) from
United States Patent and Trademark Office (USPTO) delays. This article will
discuss practice tips to avoid filing terminal disclaimers that could reduce or
eliminate PTA and shorten the patent term.
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