The Safe Harbor of 35 U.S.C. § 121: Judicial Deviation from Congressional Intent Is Not Necessary to Uphold 35 U.S.C. § 101, 18 J. Marshall Rev. Intell. Prop. L. 205 (2018)

Authors

Jeanette Braun

Abstract

35 U.S.C. § 101 allows one patent per invention. Congress recognized that patent applications may disclose more than one invention and in 1952, enacted 35 U.S.C. § 120 and 121 to allow parent patent applications to birth child applications. The rights of patent blood lines have been understood and relied on for decades. In 2015, the Federal Circuit changed the rights of patent blood lines and ruled that the order in which patent applications were birthed destroyed 35 U.S.C. § 121 protection of divisional applications. This article analyzes the congressional intent of 35 U.S.C. § 121, the rights of patent blood lines, and whether consonance passes from a parent application through a continuation application to a divisional application. The analyses found that granting a divisional application stemming from a continuation application instead of the parent application entrance into the § 121 safe harbor does not violate the one patent per invention requirement of 35 U.S.C. § 101. "We cannot destroy kindred: our chains stretch a little sometimes, but they never break." ~Marquise de Sévigné

Recommended Citation

Jeanette Braun, The Safe Harbor of 35 U.S.C. § 121: Judicial Deviation from Congressional Intent Is Not Necessary to Uphold 35 U.S.C. § 101, 18 J. Marshall Rev. Intell. Prop. L. 205 (2018)