Continuation practice, explained with sources
Plain explainers for patent practitioners. Every fact links to its primary source, such as 37 CFR 1.17(w) for the $2,700 and $4,000 continuing application fees, or MPEP 211.01(b) for copendency. Each page shows the date it was last updated.
Deadlines and fees
USPTO continuation surcharge ($2,700 / $4,000): how to calculate it
The USPTO continuing application fee is $2,700 after 6 years and $4,000 after 9, counted from the earliest benefit date, not priority. Rules and examples.
Continuation deadline: file on or before the parent’s issue date
A continuation filed on the day the parent issues is still copending (MPEP 211.01(b)). The allowance-to-issue timeline, abandonment dates and your options.
Track One for continuations: 2026 fees, cap and timing
Track One costs $4,515 plus a $150 processing fee (large entity). Continuations qualify if it is requested at filing. The 20,000 cap, pendency and total cost.
Continuation vs CIP vs divisional: new matter, dates, fees
Only a CIP adds new matter, and those claims get the CIP’s own date. Only a divisional after a restriction gets the §121 safe harbor. All three owe the CAF.
Continuation after notice of allowance: the last 3 months, step by step
Yes: after the notice of allowance and even after the issue fee, until the parent issues (MPEP 211.01(b)). Dated steps, options and a checklist.
Strategy and case law
Continuation strategy for competitor products: support, laches, cost
Kingsdown (Fed. Cir. 1988): claiming a known competitor’s product is proper. How to do it with §112 support, laches risk, Track One timing and 2025 fees.
Masimo v. Apple: the 2018 continuation behind the $634M verdict
Masimo’s ’776 patent was a 2018 continuation in a family filed in 2002, with a 2001 provisional. It issued in 344 days and backed a $634.3M jury verdict.
Written description (§112) for continuation claims aimed at a product
A six-step support check: element map, quoted paragraphs, strong/moderate/weak grading, and the chain.
Sonos v. Google (2025): prosecution laches and late continuations
Google v. Sonos (Fed. Cir. 2025) is nonprecedential, and laches failed on prejudice alone. What it means for a competitor-targeted continuation you file now.
Prosecution laches checklist: 8 steps for continuation practice
Prosecution laches needs unreasonable, unexplained delay plus prejudice. An 8-point checklist for continuations, with Hyatt (2025), PMC (2023) and Sonos (2025).
PTAB institution rate 2026: 41% in FY26, and what it means for continuations
USPTO data: IPR and PGR institution fell from 68% (FY24) to 50% (FY25) and 41% (FY26), with 500 petitions filed. Why that may make issued claims worth more.
Provisional rights under §154(d), and divisionals at the EPO, JPO and CNIPA
Pre-issue royalties under §154(d) need claims substantially identical to those published, plus actual notice. And when EPO, Japan and China allow divisionals.
More
Continuation patent application: what it is, when to file
A continuation patent application claims new scope from a pending parent’s specification and keeps its filing date. Why file one, the deadline, and USPTO fees.
Patent pending: what it means and what it protects
Patent pending means a US application is on file but no patent has issued. What it protects, how long it lasts, and when you may lawfully mark a product.
Have a pending family and a competitor product in mind?
Send us the application number and a link to the product. We check whether the as-filed specification may support claims covering it, and reply by email within 48 hours. The first reviews are free.