Patent bar Benefit and priority claims question: continuation entitled to the parent's filing date

Patent barBenefit and priority claims

A parent application received a notice of allowance, and the issue fee was paid; the patent issued on Tuesday, August 4, 2026. The applicant filed a continuation claiming the parent's benefit on Tuesday, August 4, 2026, before the issue date had passed. Is the continuation entitled to the parent's filing date, assuming the parent supports its claims?

A No, because a continuation must be filed before the issue fee is paid
B Yes, because a continuation filed on the parent's issue date is still copending
C Yes, provided a petition to withdraw from issue is filed
D No, because benefit cannot be claimed to an application that becomes a patent
E No, because a continuation must be filed at least one day before issuance

Show the answer and explanation

Answer: B. Yes, because a continuation filed on the parent's issue date is still copending

Answer: Yes, because a continuation filed on the parent's issue date is still copending. 35 U.S.C. 120 requires the later application to be filed before the patenting or abandonment of the earlier one. The Office treats an application filed on the date the parent issues as copending, because the patent is not considered granted until the end of that day (MPEP 211.01(b)). Why not the others: - Before the issue fee: paying the issue fee does not end pendency; issuance does. - One day before: filing on the issue date itself is sufficient. - A withdrawal petition: not needed if the continuation is filed by the issue date. - Patented parents: benefit can be claimed to a parent that later issued, provided the later application was filed while the parent was pending. Rule: Copendency exists if the later application is filed no later than the day the parent issues or is abandoned. Source: MPEP § 211.01(b) (9th ed., Rev. 01.2024); 35 U.S.C. 120; as at Oct 2026

Common mistake

Thinking that paying the issue fee closes the window for continuations.

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An inventor filed a provisional application on March 7, 2025. March 7, 2026 is a Saturday and March 9, 2026 is a Monday that is not a federal holiday. She files a nonprovisional application claiming the provisional's benefit on March 9, 2026, without any petition. Is the benefit claim timely?A provisional application was filed on June 2, 2025. Because of an unintentional docketing error, the nonprovisional application was filed on July 20, 2026. The applicant wants the benefit of the provisional. What is required?A claim recites a mathematical formula for calculating the optimal cure time of rubber, and further recites constantly measuring mold temperature, recalculating the cure time with the formula, and automatically opening the press when the calculated time has elapsed. Under the USPTO's analysis, which conclusion is best supported?

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Original study material written from the MPEP; not a question from the current exam.Independent. Not affiliated with or endorsed by the USPTO. Verify figures and rules against current guidance before relying on them.