Obviousness-Type Double Patenting And Divisional Applications In Canada

Obviousness-type double patenting ("OTDP") arises when two or more patents or applications include claims that, while not being identical, are not patentably distinct from each other.  In the U.S., OTDP rejections can be overcome by filing a terminal disclaimer that limits the term of the rejected application to be no greater than the term of the disclaimed patent.  In Canada, however, terminal disclaimers are not available to overcome OTDP rejections.  To overcome an OTDP rejection in Canada, the claims can be amended to become patentably distinct, or persuasive arguments can be presented that explains why the pending claims are already patentably distinct.  

Amending the claims to become patentably distinct is not always desirable.  Thus, when developing patent portfolios that will include patents with overlapping subject matter, OTDP rejections in Canada should be avoided.  One way to do so is to include all possible claims in the original application, thereby