Can you file a continuation after the notice of allowance?

Yes. Section 120 needs the continuation to be filed before the parent is patented, abandoned or otherwise terminated (35 U.S.C. 120). Allowance changes none of that. A continuation filed on or before the issue date is copending (MPEP 211.01(b)).

What changes is time. The Notice of Allowance starts a fixed 3-month issue-fee period. Paying the fee starts a much shorter one: the patent issues soon after, and the MPEP warns that “applicants have a limited time, after the payment of the issue fee, to file continuing applications” (MPEP 1306.03).

Four tools, with different jobs. Only a continuation keeps the family open after the parent issues.

File the continuation before paying the issue fee

This is the simple route. The continuation is on file, and you can then pay the issue fee and let the parent issue with its allowed claims. The MPEP says continuing applications should preferably be filed before payment (MPEP 1306.03).

File an RCE

An RCE reopens prosecution of the parent itself. Filed before the issue fee is paid, it needs no petition, and the issue fee need not be paid (37 CFR 1.313(a); MPEP 1308). After payment, it needs a granted petition under 1.313(c)(2).

Petition to withdraw from issue, 37 CFR 1.313(c)

After payment, an applicant’s petition is granted on only three grounds:

1. unpatentability of a claim, with an amendment and explanation;
2. consideration of an RCE;
3. express abandonment, which may be in favor of a continuing application.

The fee under 37 CFR 1.17(h) is $150 (large), $60 (small) or $30 (micro). The petition must be received and granted before the issue date (37 CFR 1.313(d)). A grant can come as late as the day before issue, but “the Office cannot ensure that any petition under 37 CFR 1.313(c) will be acted upon prior to the date of patent grant” (MPEP 1308). For keeping a family open, a continuation filed before issue does the job without this risk.

QPIDS

QPIDS lets an IDS be considered after the issue fee is paid, without a processed RCE. It is filed with a 1.313(c)(2) petition and an RCE that is processed only if the examiner finds a reference requires reopening. Otherwise the USPTO issues a corrected notice of allowability (USPTO QPIDS page; MPEP 1308). It is for references, not for extending the window.

Yes, and some practitioners do. When a parent is about to issue and the claim strategy is not settled, a continuation is filed with a provisional claim set, and the claims are amended later, once the target is clear. The filing date secures copendency; the claims can follow.

Three things to keep in view:

• Support comes from the as-filed specification. Benefit under 120 covers an invention “disclosed in the manner provided by section 112(a)” in the parent (35 U.S.C. 120). The Federal Circuit says the written description requirement is “particularly important” when claims are added later in response to others’ developments (Quake v. Lo, Fed. Cir. 2019). Check support, with paragraph citations, before amending.
• Claims added later still owe excess-claim fees. Each claim over 20 and each independent claim over 3 is charged on filing “or later presentation” ($200 and $600, large entity) (37 CFR 1.16(h)–(i)).
• Track One must be requested on filing. The request has to be present when the continuation is filed, with at most 4 independent and 30 total claims (37 CFR 1.102(e)).

For how to aim claims at a competitor’s product with support and laches in mind, see the continuation strategy explainer.

It may. A continuation filed more than 6 years after the earliest benefit date owes the continuing application fee: $2,700 large, $1,080 small, $540 micro. After 9 years it is $4,000, $1,600 or $800 (CAF Guide).

The earliest benefit date is the earliest US nonprovisional, PCT or Hague filing date claimed, not a provisional or foreign priority date. The fee is due with the benefit claim. If it is not paid, the benefit claim is not entered.

Calculate the surcharge date for a family →

1. Docket the issue-fee due date: mailing date + 3 months. Not extendable.
2. Confirm the parent is a nonprovisional, and which other family members are pending (window checker).
3. Work out the surcharge date from the earliest benefit date (calculator).
4. Decide on a continuation before paying. If yes, file it first, then pay.
5. If a late reference turns up: RCE before payment, or QPIDS after.
6. Want Track One? Request it on filing, within 4 independent and 30 total claims.
7. Check every planned claim for support in the as-filed specification, with paragraph citations.
8. After paying, watch Patent Center for the Issue Notification and its issue date.
9. File by the issue date at the latest, by Eastern Time.