Introduction

The doctrine of obvious-type double patenting (ODP), also known as non-statutory double patenting, recently became a very hot topic for patent owners and practitioners after two notable events. ODP is a judicially created doctrine that prevents an improper timewise extension of the patent term by prohibiting claims in a second patent not patentably distinct from claims in a first patent. The USPTO will reject, under the doctrine of ODP, patentably indistinct claims in certain circumstances. A patent applicant may overcome ODP by filing a terminal disclaimer, which disclaims any patent term longer than the term of an unexpired first patent and requires the ownership of both patents to be co-extensive. A terminal disclaimer ensures that the term of the patent with the terminal disclaimer will not extend beyond the term of the patent forming the basis of the non-statutory double patenting.