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Navigating through the Obviousness-Type Double Patenting Minefield

Amelia Feulner Baur and Elizabeth A. Doherty

©2018. Published in Landslide, Vol. 10, No. 3, Janusry/February 2018, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Obviousness-type double patenting (ODP) is a judge-made doctrine intended to prevent a patentee from unfairly extending its patent term by obtaining different patents for essentially the same invention.1 It also facilitates common ownership of affected patents, which helps to “prevent multiple infringement suits by different assignees asserting essentially the same patented invention.”2 ODP occurs where a claim in a later patent is patentably indistinct from (i.e., is either anticipated or rendered obvious by) a claim in an earlier patent.3

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