What Does It Mean To Double Patent An Invention? Should Double Patenting Be Your Option?

Double Patents: A Suitable Tool For Inventors (& A Video Explanation)

​Patents are generally issued for an invention to protect it from being reproduced or used indiscriminately or without permission by another party.

Patents protect the right of the inventor over his invention.

Typically this patent protection extends to a maximum of 20 years. Due to the growing market and advancement in technology and research, an increasing number of inventions and product ideas have been protected with patents over the years.  

Double patenting is when the USPTO grants two patents for a single invention to the same inventor. Based on geography and jurisdiction, the rules for double patenting vary. The United States will accept double patents unless the application is deemed to fall under one of the two reasons for double patent rejection. Those are:

1. A "same invention" rejection: Pretty intuitive; basically your invention is not declared unique enough
2. An "obviousness" rejection: Also intuitive; essentially this means your patent application is too obvious of a variation on the first patent

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When Do Double Patents Come Into The Picture?

Generally, in most of the patent systems around the world, it is unacceptable to have an applicant issued with two different patents for the same invention or invention idea.

However, because there is a certain limit to how long an invention can be patented, inventors and manufacturing companies, often times, proceed to file more than one patent application for an invention.  
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Issuing an inventor two different patents for the same invention in the same geographical area has been defined as double patenting.

By filing numerous continuation and CIP (continuation in part) applications for an invention patent, inventors have a chance of securing a double patent for their invention. The inventors direct the continuation in part applications for the same patent to the patent office in almost, but not entirely similar subject matter.

The main aim and objective of securing a double patent for a single invention is to ensure that the inventor secures an extended patent protection period than what is normally obtainable.

Therefore, the manufacturing company or singular inventor has legal right and exclusivity over the invention for more than 20 years.

​Apart from this, the invention or invention idea cannot be used by another party or the public past the normal expiration time of the patent and the inventor is able to lay two claims to an infringement on one invention.

Types Of Double Patents

Double patenting is distinctly classified into two forms: Statutory double patenting and non-statutory double patenting.
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• Statutory Double Patenting: also known as the “similar invention double patenting,” this form of double patenting is typically raised on statutory grounds. The United States Code which governs it states that “The discoverer or inventor of a new invention or invention idea or an improvement on an invention or idea, may get an invention patent for the said invention, subject to requirements and conditions.” Hence, on statutory basis, an application for an invention is rejected if the subject matter of the said application corresponds to the subject matter of another patent application or issued patent.

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• Non-Statutory Double Patenting: also referred to as the “anticipated or obviousness type double patenting,” the subject matter of a patent application is scrutinized on the basis of “obviousness,” rather than statute. This is solely based on a doctrine create by the judiciary that is meant to specifically avoid the extension of patent applications beyond 20years. Hence, when a new application for a patent is deemed to be an anticipated or obvious variant of an existing application or an invention that has already been granted a patent, it is rejected based on the principles of non-statutory double patenting.

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Already have a patent and need a second? We have you covered

Double Patenting Rules

​According to the United States Patent and Trademark office (USPTO), double patenting can be rejected on these two grounds, that is, the “same invention rejection” and “obviousness type rejection.”
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However, to circumvent an obviousness type rejection, the inventor or manufacturing company can file a “terminal disclaimer.”

The terminal disclaimer is a legal statement written by the inventor to state that he does not claim the patent period beyond the time the first patent expires.

The double patenting rejection is avoided by the inventor by filing the terminal disclaimer as long as he owns the similar patents.

​On the other hand, to overcome a statutory double patenting rejection, the Inventor only needs ensure that the claims in the two patent applications are dissimilar.
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Views On Double Patents [VIDEO]

Sometimes it's apparent that video is the most concise way to reach folks.

Its also important you don't take my information for gospel without a second opinion.

In the video below, Nick Craig talks about double patents. The meat of the double patent conversation (debate?) starts at 11:13 in the video, in segment two. Nick  goes into the basics of obviousness type double patenting and touches on terminal disclaimers.

After you've absorbed this, do you think a double patent is the move for you? If you want professional guidance on that decision we can help you out!
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