A continuation-in-part application is a type of continuing application which captures an improvement or something new (i.e., “new matter”) which was not disclosed in an already filed non-provisional patent application (as new matter cannot be added to a filed non-provisional patent application). As stated in MPEP 201.08 – Continuation-in-Part Application:
“A continuation-in-part is an application filed during the lifetime of an earlier nonprovisional application, repeating some substantial portion or all of the earlier nonprovisional application and adding matter not disclosed in the said earlier nonprovisional application. (In re Klein, 1930 C.D. 2, 393 O.G. 519 (Comm’r Pat. 1930)) … ”
A continuation-in-part application requires satisfaction of at least the following items: 1) filed while an earlier (“parent”) application is still pending (e.g., “filed before the patenting or abandonment of or termination of proceedings on the first application or an application similarly entitled to the benefit of the filing date of the first application”); 2) common inventor between the parent application and the continuation-in-part application; 3) repeats a substantial portion of the earlier non-provisional application; and 4) the continuation-in-part application contains a specific reference to the earlier filed application. (MPEP 201.08 – Continuation-in-Part Application) Accordingly, it must be stressed that if the earlier (“parent”) application has issued as a patent or is abandoned, an Applicant cannot file a continuation-in-part application.
Because new matter is introduced in a continuation-in-part application, it is likely that at least some of the claims of the CIP application will not enjoy the benefit of the priority date of the parent application. More specifically, claims which include new matter will have a priority date of the continuation-in-part application’s filing date. However, claims which rely only upon the matter included in the parent application (and do not include new matter) would enjoy the earlier (parent) application’s filing date as their priority date. Additionally, because new matter is included within a continuation-in-part application, a new assignment must be filed.