Can I use exact same independent claim in a Continuation patent that I used in my original issued patent, but with different dependent claims?

For example, if my issued patent had independent claim of "self-driving car", with dependent claim of "uses gasoline engine", in Continuation, could I use independent claim of "self-driving car", but with dependent claim of "uses electric engine"?

3 Answers 3


You wouldn't want to file identical claims. Identical claims will receive a "Statutory Double Patenting" rejection. On other note why to pay fee twice on claim already filed and pending.

Unlike the "Non-Statutory Double Patenting" rejection referred to by Gary, the you can not overcome the Statutory Double Patenting rejection with a terminal disclaimer. You must amend the claims. See MPEP 804.02(I).

Understand that in order to file a continuing application, the originally filed application, or an continuation/divisional/continuation-in-part based on the originally filed application must be pending (i.e., not abandoned, not issued).

If you are filing another application as a result of an examiner's requirement for restriction, the application would be called a divisional application rather than a continuing application. Statutory double patenting is prohibited in divisional applications resulting from an examiner's requirement for restriction. See MPEP 804.01.


Honestly, I've never considered doing that. Absent unusual circumstances, you want to have at least some variation in claim scope so that if the original patent filing claim is invalidated, the continuation claim isn't automatically going to be considered invalid. It is very common to have independent claims in a continuation application that presents a small amount of variation from the previously issued patent. When that happens, you will normally receive a "non-statutory double patenting rejection". "Non-statutory" because it is entirely a judicially created bar to patentability. You normally overcome this rejection by filing a "terminal disclaimer" where you limit the enforceability of the continuation patent so that it has the same term and is enforced by the same owners as the parent patent.


Slightly different situation than original question in this chain, but if you are facing abandonment of an application due to failure to respond to an office action, and your client still cannot decide how to respond, or want's to file a CIP but needs more time, then I think re-filing the application as a duplicate continuation would be a possible, if expensive, way to buy some more time. Even if you received a duplicate office action on the new continuation in 1-2 months, you would still have up to six months from then to file a response, or to file a CIP (or an appeal).

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .