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ARTICLE · 20 JULY 2022

Courts Are Unsettled On Obviousness-Type Double Patenting

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The judicially created doctrine of obviousness-type double patenting, or ODP, can be a potent defense in litigation. Under the ODP doctrine, patent claims that are not patentably distinct...

United StatesIntellectual Property
Rachel J. Elsby
Rachel J. Elsby
Brooks J. Kenyon
Brooks J. Kenyon
Svetlana Pavlovic
Svetlana Pavlovic
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The judicially created doctrine of obviousness-type double patenting, or ODP, can be a potent defense in litigation. Under the ODP doctrine, patent claims that are not patentably distinct from those in a commonly owned, earlier-filed patent are subject to invalidation.

Grounded on the principle that each invention should be limited to one patent term, the ODP doctrine was created to deter parties from procuring sequential patents with different expiration dates claims to the same invention, or obvious variants of the same invention,1 the primary concern being that a patentee who obtains such patents could:

  • Engage in serial litigation; or
  • Sell the patents to different entities only to have both entities separately sue an alleged infringer for effectively the same thing.2

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