
The Federal Circuit recently upheld the Patent Office’s decision to reject claims in four separate reexamination cases due to obviousness-type double patenting (ODP). In re Cellect, LLC, Appeal Nos. 22-1293, -1294, -1295, -1296 (Fed. Cir. Aug. 28, 2023). This decision is important because it expands ODP, a doctrine judges developed long ago, when patents received a term of 17 years from the date of issue, rather than 20 years from the date of filing. Unless overturned, this decision will significantly affect patent families that have patents with different expiration dates. This post explains some of the decision’s consequences and explores potential patent prosecution strategies.