Double patenting

Toshiko Takenaka

Chapter 9 in The Law and Theory of Patents, 2026, pp 180-186 from Edward Elgar Publishing

Abstract: Double patenting is a largely implicit patent law doctrine derived from the fundamental policy that an inventor is entitled to only one patent per invention and that exclusive rights must expire without unjustified extension. This chapter examines the doctrine's development and application across the United States, Europe, and Japan, highlighting sharp doctrinal divergences. In the United States, courts recognize both statutory double patenting and the judicially created doctrine of obviousness‑type double patenting, which bars patents on claims that are not patentably distinct from earlier claims, even when not identical. This expansive approach reflects a strong policy against term extension but introduces complexity through continuation practice and terminal disclaimers.

Keywords: Double patenting; Obviousness-type double patenting; Same subject matter standard; Terminal disclaimer; Pharmaceutical and biotechnology patents; Continuation and divisional applications (search for similar items in EconPapers)
Date: 2026
ISBN: 9781035310425
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