19 System for Comprehensive Protection of Invention―Through the comparison between the U.S. CIP application
system and the Japanese internal priority system―
Researcher:Atsushi Mizuno(*)
This report discusses the ideal modalities for the comprehensive protection of inventions. Specifically, thereport first overviews the current systems for comprehensive protection of inventions, focusing on thecontinuation-in-part (CIP) application system in the United States and the internal priority system in Japan.
Then, it examines the problems and the ideal modalities in the case where an application system similar to the
U.S. CIP application (hereinafter referred to as the “CIP-type application”) is introduced in Japan, based on its
relation to the system of publication of unexamined applications.
Positive consideration should be given to allowing the filing of a CIP-type application before the publicationof the earlier application in Japan. However, the filing of such an application after the publication of the earlier
application would have little merit to the applicant because the Japanese patent system does not have provisions
for a grace period as in the United States. At the same time, thorough study should be made on the negative
effects, such as an increase in third parties’ monitoring burdens and the occurrence of incidences where anapplicant repeatedly files CIP-type applications on purpose in order to keep related applications pending for along time.

Ⅰ Introduction
This report compares the continuation-inpart (CIP) application system in the United States
and the internal priority system in Japan,
examines the problems and the ideal modalities in
the case where an application system similar to
the U.S. CIP application (hereinafter referred toas the “CIP-type application”) is introduced inJapan, and examines ideal modalities ofcomprehensive protection of inventions.

Ⅱ Appropriate Protection of Inventions
1

BackgroundIn recent years, technological development
seems to be taking place through active
importation and fusion of technologies of different
fields under a social environment where
technological innovation is constantly sought. In
this course, not only basic/fundamental inventions,but improvement inventions, etc. are also
developed one after the other. Therefore, it isdesirable for Japan to have a system that protects
improvement inventions, etc. comprehensively
and exhaustively. A representative system inJapan is the internal priority system.
At the same time, the United States has thesystems of CIP application and provisional
application. Under the CIP application system,(*)

the applicant may file a CIP application as long as
the earlier application is pending in examination
or appeal. In contrast, under the Japanese internal
priority system, the period for filing anapplication claiming priority is limited to within
one year from the filing of the earlier application.
Thus, there are advocates for the introduction of asystem similar to the U.S. CIP application system
in Japan as well.
2Comprehensive Protection of Inventions(1) Systems for comprehensive protection
If there were no system that enables
comprehensive protection of inventions, theapplicants would have to file separate,
independent patent applications for the series ofcreated inventions. Then, the claims for the later
application would have to be drafted in such a way
as to avoid double patenting with the earlier
application. As a result, there could be gaps
between the scopes of the respective patents, andthe inventor may not be able to receive sufficient
protection for his/her inventions.
The typical modalities of comprehensive
protection of inventions are to “fill in the gaps”
between the scopes of the patents obtained byfiling multiple patent applications and to “expand”
the scope of the claim of a single patentapplication.

Assistant Manager, Intellectual Property Department, Legal Division, Toppan Printing Co. Ltd.

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(2) Paris Convention priority claim
The priority right system under the Paris
Convention allows multiple priorities and partialpriority. Therefore, it allows the applicant to add
new matter to the first application in filing thesecond application, and to seek comprehensive
protection of the inventions in the other member
countries.
(3) Scope of effect of a patent right and therelation with the doctrine of equivalents
In Japan and the United States, there is theconcept of doctrine of equivalents, but applicationof the doctrine of equivalents is still subject todebate.
The systems of comprehensive protection
would have greater institutional significancewhen the scope of application of the doctrine ofequivalents is narrow. In other words, it would bepossible to establish literal infringement without
relying on the doctrine of equivalents wheninterpreting the scope of the acquired patent.
3

Systems for Amendment

The Japanese and U.S. patent laws allow theapplicant to amend the claims and thespecification. In Japan and the United States,
amendment is allowed for the matter described in
the originally filed specification, in principle, andit would not be allowable to add an improvement
invention created after the filing of a patentapplication or add new data obtained after thefiling of a patent application to the specification of
the earlier application by amendment. Therefore,
it is difficult and inappropriate to use the systemof amendment as a means for comprehensive
protection of inventions.
4

Summary

From the viewpoint of protecting inventions,the modalities for protecting improvement
inventions, etc. are important. Therefore, it isdesirable to improve the system that allows
applicants to seek comprehensive protection. In
the current Japanese internal priority system,
the problem seems to be the fact that an
applicant can only file an application claiming
priority within one year from the filing of theearlier application.

Ⅲ Comprehensive Protection of
Inventions in the United States
1

Systems for Protection in the UnitedStatesIn the United States, the CIP application
system and the provisional application system areavailable as systems for filing an application that
adds new matter when an improvement invention,etc. has been made after the filing of the original
application. Also, if the matter added byamendment would not be determined as new
matter, the applicant can simply amend thespecification. In addition, from the viewpoint of
not creating gaps between the scopes of theacquired patents, the determination standards fordouble patenting would also be important.
2

Continuation-in-Part
System(CIP)

Application(1) Definition of a CIP application
A CIP application is one type of continuing
applications along with a continuation application
and a divisional application. It is defined as “anapplication filed during the lifetime of an earlier
nonprovisional application, repeating some
substantial portion or all of the earlier
nonprovisional application and adding matter notdisclosed in the said earlier nonprovisional
application” (MPEP(*1) 201.08).
(2) Related systems(i) Continuation application
A continuation application is “a second
application which contains the same disclosure as
the original application.”(*2) A continuation
application can be filed based on 37 CFR(*3)
1.53(b). As a system in place of the continued
prosecution application (CPA) under former 37
CFR 1.53(d), a request for continued examination(RCE) was introduced.
(ii) Divisional application
A divisional application is “a later application
for an independent or distinct invention, carved
out of a pending application and disclosing andclaiming only subject matter disclosed in theearlier or parent application” and “a divisional
application is often filed as a result of a restriction
requirement made by the examiner” (MPEP
201.08). Therefore, no new matter can be
included in a divisional application.

(*1) MPEP: Manual of Patent Examining Procedure. It is referred to as “MPEP” in this report.
(*2) See Donald S. Chisum, Chisum on Patents, Matthew Bender, §13.03[2].
(*3) Title 37 - Code of Federal Regulations Patents, Trademarks, and Copyrights. It is referred to as “37 CFR” in thisreport.

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(3) Legislative history of the continuation
application
The U.S. continuation application system issaid to have been put in the statutory form in thelaw amended in 1952, based on a court judgmentin 1864.(*4) A CIP is also an application by which apatent is sought for a part of the substance of theinvention as originally claimed, as referred to in
the above judgment.
(4) Objectives of a CIP application
The objectives of filing a CIP application are
regarded to include addition of a later-developed
improvement to the earlier application.
(5) Requirements for a CIP application(i) Inventor
In the United States, the applicant of an
invention must be the inventor. Meanwhile, a
requirement for filing a CIP application is that“the first application and the alleged continuationin-part application were filed with at least one
common inventor” (MPEP 201.08).
(ii) The invention is disclosed in the parent
application
In order for the invention claimed in a CIP
application to enjoy the benefit of the filing dateof the parent application, the invention needs tobe described in the specification, etc. of theparent application in accordance with the firstparagraph of Section 112. In a case where afurther CIP application (grandchild application) is
filed based on a CIP application (child application),continuity of disclosure is required.
(iii) The parent application is pending
A CIP application can be filed as long as its
parent application is pending in examination, etc.,
but as mentioned later, the filing is practicallylimited in relation with the publication system.
(iv) Indication of being a CIP application
A CIP application must indicate its
dependency on the parent application. This allows
one to identify the parent application from the
CIP application and to easily refer to the progressof examination of the parent application.
(v) Obligation to update the best mode
When filing a CIP application that adds new
matter pertinent to the best mode described in
the parent application, the applicant has theobligation to update the best mode.

(6) The effect of a CIP application and theterm of the patent(i) Effect of CIP application
Among the inventions claimed in a CIP
application, those disclosed in the parent
application can enjoy the benefit of the filingdate of the parent application, as long as theymeet the above-mentioned requirements, and thepatentability, such as the novelty andnonobviousness, of those inventions would bedetermined based on the filing date of the parent
application, while that of the other inventions
would be determined based on the filing date of
the CIP application.
(ii) Term of patent
The term of the patent acquired by a CIP
application is counted from the filing date of theearliest application and ends 20 years from that
date. As a result, the term cannot be extended byrepeatedly filing CIP applications. Therefore,
even if an improvement invention, etc. has been
added by a CIP application, the term of patent
would end before 20 years pass from the filingdate of the CIP application.
(7) Relation with the publication system(i) The possibility for a CIP application to be
rejected based on its own publication
There is a provision for a grace period(Section 102(b)) in the United States. Therefore,
it would be possible in effect to file a CIP
application adding new matter during one year
after the publication of the parent application.
Conversely, if a CIP application is filed after
that, it is very likely that the invention would be
rejected in light of the publication of the parent
application.
Therefore, there would be little merit in
filing a CIP application after one year from thepublication of the parent application in the UnitedStates in most cases.
(ii) Exceptions to the publication system
If an applicant makes a request upon filing,certifying that the invention disclosed in the U.S.
application has not and will not be the subject ofan application filed in another country that
requires publication of applications 18 months
after filing, the application will not be published.
A report(*5) by the United States General
Accounting Office (GAO) has illuminated thatapplications for which a valid request for
non-disclosure is made constitute less than 10%of all applications. Thus, it seems rather rare for(*4) Godfrey v. Eames, 68 U.S. 317 (U.S., 1864).
(*5) PATENTS Information about the Publication Provisions of the American Inventors Protection Act (May 2004)(http://www.gao.gov/new.items/d04603.pdf).

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applicants to take the advantage of the exceptions
to the publication system in order to be able tofile CIP applications over a long term from thefiling date of the parent application. In addition, areport(*6) by the Federal Trade Commission (FTC)also reveals that 90% of all applications have been
published. The FTC’s report also states that “theCommission recommends legislation requiring
publication of patent applications 18-months after
filing.” (*7)(8) Issue of prosecution history estoppel
When an amendment to a claim is judged tobe new matter, and the applicant later files a CIP
application, there is an issue of whether the claim
would be denied of the benefit of the filing date of
the parent application on a basis that the applicant
was aware that the amendment was new matter. A
CAFC (Court of Appeals for Federal Circuit)judgment(*8) held that when the final rejection of
the parent application is not based on Section 112,
the applicant would not be deemed to have beenaware that the matter added by the CIP
application was new matter.
(9) Prosecution laches
A CAFC judgment(*9) indicated that, when an
applicant acquires a patent through sequential
filing of continuing applications including CIP
applications, the issue of prosecution laches may
arise, and the patent may become unenforceable.
After the case was remanded to the district court,
the district court held that the patent was
unenforceable due to prosecution laches. (*10)(10) Status of use of the CIP application
system
As for the status of use of the CIP application
system, a paper(*11) that surveyed the number of
CIP applications indicated that the number of CIP
applications filed increased until 1995, but it
decreased for a time in 1996. Before the law
amendment that entered into force in 1995, theterm of patent was 17 years from the patentissuance. Thus, there would have been a
considerable merit in filing CIP applications.
After that, the number of CIP applications

has been increasing, but their proportion to allapplications has been slightly declining.
(11) Criticisms against CIP applications
There are criticisms against continuation
applications and CIP applications. These do notsolely criticize CIP applications, but refer to CIP
applications in a criticism against continuation
applications. Some of these criticisms are thatthey invite delays in examination and inventors
rewrite the claims after monitoring developmentsin the marketplace.
(12) U.S.
experts’opinionson
CIP
applications(i) Should an applicant file a CIP application or aseparate, independent application when he makes
an improvement invention, etc.?
The question of whether to choose a CIP
application or a separate, independent application
when an improvement invention, etc. has been
made is an extremely difficult question, so aseparate determination is made for each case.
However, it is not necessarily common to file a
CIP application when adding an improvement
invention. It is because the term of patent will be
shortened.
(ii) What are the objectives of filing a CIP
application?
A CIP application is sometimes effective forcircumventing prior art that became publicly
known after the filing date of the first application.
(iii) Is there a merit in filing a CIP application
after one year from the publication of the parent
application?
Such a CIP application would be rejectedbased on the publication of the parent application,
so it would have little meaning.
3

Provisional Application System

The provisional application system, which
was introduced by the law amendment in 1994
(Section 111(b) and MPEP 201.04(b)), is a systemthat can be used for comprehensive protection of(*6) To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy (FTC, October 2003) Chapter
5, 14 (http://www.ftc.gov/os/2003/10/innovationrpt.pdf).
(*7) Ibid., Chapter 15, 15.
(*8) See Waldemar Link, GmbH & Co. v. Osteonics Corp., 31 U.S.P.Q.2d 1855.
(*9) Symbol Technologies, Inc. v. Lemelson Medical Education & Research Foundation, Ltd. P’ship, 277 F.3d 1361 (Fed.
Cir.2002).
(*10) Symbol Technologies, Inc. v. Lemelson Medical Education & Research Foundation, Ltd. P’ship, 2004 U.S. Dist.
LEXIS 1499 (U.S. Dist., 2004).
(*11) See Cecil D. Quillen, Jr., Ogden H. Webster, and Richard Eichmann, Continuing Patent Applications andPerformance of the U.S. Patent and Trademark Office – Extended, The Federal Circuit Bar Journal, Vol.12, No.1
pp35-55 (2002).

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inventions. The system of provisional applications
has been reported(*12) in detail in the past. The
applicant of a provisional application does notneed to include a claim in the application, and he/she must file a nonprovisional application or convert
the application to a nonprovisional application
within a year from the filing of the provisional
application. In this respect, it is subject to similar
time limitation as the Japanese internal priority
system. The term of patent is 20 years from thedate of filing the nonprovisional application.
4

Amendment of the Specification, etc.

In the United States, an applicant is allowed
to amend his/her claim or specification, etc., but
he/she may not add new matter by amendment. It
would not be possible to add an improvement
invention, etc. or new data by amendment, inprinciple.
The handling of amendment that adds new
matter differs between when new matter is added
to the claim and when it is added to a different
part, such as the specification, etc. When matterthat has not been described in the original
specification, etc. is added to the claim by
amendment, it will be a breach of Section 112. On
the other hand, if such matter is added to thespecification, etc. by amendment, it will be abreach of Section 132 as an issue of prohibition to
add new matter.
5

Double Patenting

In the United States, double patenting
becomes a problem when multiple applications
have been filed by the same inventor(s) or thesame assignee(s). The purpose of the system of
double patenting is to prevent a practical
prolongation of a patent term, and can be divided
into the case of a same invention and the case of an
obvious invention. As for the aspect of considering
an invention whose scope is obvious to be double
patenting as well, the U.S. provisions are regarded
to be stricter than the provisions on double
patenting in Japan. However, since both claims
could be patented by using a terminal disclaimer aslong as the claims do not have an identical scope, a
gap would not easily occur between the scopes ofthe patents and comprehensive protection of
inventions would be possible.
6

Summary

Although the CIP application system in the
United States can be used for comprehensive

protection of inventions, filing a separate,
independent application seems to be a more
frequent option when filing an improvement
invention, etc. of the invention claimed in an
already filed application, because the term of thepatent would be counted from the filing date of
the parent application. Also, due to theintroduction of the publication system, thesignificance of filing a CIP application after one
year from the publication is considered to have
weakened in the United States, and it can beconsidered that the time for filing a CIP
application is now practically limited.

Ⅳ Comprehensive Protection
Inventions in Japan
1of

System of Protection in Japan

The internal priority system is available as asystem for protecting improvement inventions,etc. under the Japanese Patent Law. The
allowable scope of amendment will also be
discussed briefly.
2

Internal Priority System(1) Objective of legislation
Since the Paris Convention allowed multiple
priorities and a partial priority, the internal
priority system was introduced in order toestablish a national filing system that has thesimilar functions. The objective of legislation is toallow an applicant to acquire a morecomprehensive and complete right.
(2) Outline of the internal priority system(i) Requirement for applicants
When filing an application claiming internal
priority, the applicants of that application andthose of the earlier application must be the same.
(ii) Requirements for the earlier application
The requirements include that, when filingan application claiming internal priority, theearlier application must not be a divisional
application or a converted application.
(iii) Period for filing an application claiming
internal priority
The period for filing an application claiming
internal priority is one year from the filing date of
the earlier application. This length is said to havebeen decided to achieve harmony with the periodof priority under the Paris Convention and the
Patent Cooperation Treaty (PCT).

(*12) “Research and Survey on Rights and Duties of Applicant regarding Patent Application” (FY 2000 Japan Patent
Office [JPO] Research Report on Problems Relating to the Industrial Property System) (Institute of Intellectual
Property, March 2001).

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(3) Relation with the publication system
In terms of procedure, the one-year period
from the first filing date for claiming internal
priority is compliant with the time of the
publication, which is 18 months after the first
filing date.
(4) Status of use of the internal priority
systemThe number of applications claiming internal
priority that have been filed and their proportion
to all patent applications are slightly increasing
every year.
3

Amendment of the Specification, etc.

Amendment will not be allowed unless thematter on the improvement invention, etc. ismatter originally described in the specification. In
short, it will not be allowed to add an
improvement invention, etc. that was notdescribed at the time of the filing or was createdafter the filing.
4

Summary

In Japan, an application claiming internal
priority may only be filed within one year fromthe filing of the earlier application. This fact islikely to be the basis for a suggestion to introduce
a system similar to the U.S. CIP application in
Japan. Therefore, one idea is to introduce a
CIP-type application system in Japan in order toachieve appropriate protection of such inventions.

Ⅴ Considerations
1(1) Objective of introducing the system
The reason for considering introduction of a
CIP-type application system in Japan is to achievecomprehensive protection of inventions andappropriately
protect
basic/fundamental
inventions.
(2) Requirements for applicants
The requirements for applicants eligible tofile CIP-type applications will be examined in thissection. It would be worthy of consideration torequire the applicants of a CIP-type application to
include the applicants of the parent application,
while also allowing addition of applicants, and to
grant the benefit of the filing date of the earlier
application even if the applicants were not exactly
the same.
(3) Requirements for the subject matter ofthe parent application
If the parent application of a CIP-typeapplication is a divisional application or aconverted application, it is likely to increase theexamination burden and third parties’ monitoringburden. Therefore, it would be reasonable not toallow a CIP-type application in such a case.
(4) Period for filing a CIP-type application
The period during which a CIP-typeapplication could be filed would be the biggest
problem in respect to the significance ofintroducing the CIP-type application system.
(i)

Appropriateness of Introducing a
CIP-type Application System in JapanThe opinion suggesting introduction of a
CIP-type application system in Japan isconsidered to be based on a dissatisfaction
regarding the fact that when an applicant wants to
add an improvement invention or data after theperiod for claiming internal priority, the onlymeans the applicant can take is to file a separate,
independent application, and that such a separate
application could cause the problem of double
patenting, etc.
The government should constructively
examine introduction of a CIP-type application
system in Japan from the viewpoint of extending
better protection for basic inventions.
2

the U.S. CIP application is introduced in Japan.

Problems Pertaining to Introduction of a
CIP-type Application System in Japan

This section examines the problems, etc. in
the case where an application system similar to

Until one year and six months after thefiling
It may be appropriate to consider allowing
the filing of a CIP-type application for as long a
period as possible until one year and six months
from the filing date of the earlier application.
(ii) After one year and six months from thefilingThere seems to be a considerable difference
between allowing the filing of a CIP-typeapplication until one year and six months from thefiling of the parent application and allowing iteven after that period.
When a CIP-type application is filed after
publication of the parent application, it is very
likely to be rejected for lack of an inventive step
based on the invention described in the
publication of the parent application.
(iii) Relation with other procedures, etc.
Since the period for filing a CIP-typeapplication could be more relaxed than the period
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application, when allowing the filing of a CIP-typeapplication for a long period after the filing of theparent application, it would be necessary toconsider the relation with the procedures that are
expected to be carried out with respect to theparent application.
(iv) Grace period
The merit of filing a CIP-type application
after the publication of the parent application
would be larger if there are U.S.-type provisions
on the grace period. The issue of the grace period
has been discussed in examination of the
Substantive Patent Law Treaty (SPLT) at theWorld Intellectual Property Organization (WIPO),
so it is considered to be appropriate to examine it
along with these discussions.
(5) Term of patentWith regard to the patent term when a
CIP-type application has been patented, there is aconcept to count it from the filing date of the
CIP-type application, and when the fling date islater than one year from the parent’s filing date,to count it from one year after the parent’s filing
date, as well as a concept to make the patent term
20 years from the filing date of the parent
application, among other concepts.
(6) Benefit of the filing date of the parent
application
The content of a CIP-type application that isentitled to the benefit of the filing date of theparent application should be stipulated in thesame manner as the current provisions on theinternal priority system.
(7) Publication of CIP-type applications
The time for publishing a CIP-typeapplication should probably be one year and six
months from the filing date of the parent
application. However, when a CIP-type application
is filed immediately before publication, the parent
application could be published one year and six
months after its filing date and the CIP-typeapplication could be promptly published after that.
(8) Handling of the parent application(i) When deeming the parent application tohave been withdrawn
Deeming the parent application to have been
withdrawn is likely to comply with the purpose of
CIP-type applications. It would be reasonable todeem the parent application to have been
withdrawn three months from the filing of the
CIP-type application, and an applicant should beallowed to change the CIP-type application into an
ordinary application after filing a CIP-typeapplication.

IIP Bulletin 2005(ii) When not deeming the parent application
to have been withdrawn
This is a concept of not deeming the parent
application to have been withdrawn when a
CIP-type application has been filed. However, theproblem of double patenting could occur between
the parent application and the CIP-typeapplication, and if the applicant tries to avoid this,a gap could be created between the scopes of thetwo patents; thus, not leading to comprehensive
protection of inventions.
(9) Relation with amendment
Introducing a CIP-type application systemseems to be more desirable for adding new matter
after the filing of an application, rather thanrelaxing the requirements for amendment of thespecification, etc., from the viewpoint of the
impact on third parties.
(10) Relation with the internal priority
system
If a CIP-type application system were to be
introduced, its relation with the current internal
priority system would be a question. Since theobjectives of the two systems are very similar, it
would be desirable to integrate these systems.
(11) Relation with the divisional application
systemThe relation between CIP-type applications
and divisional applications should also be
considered. There is room to consider a divisional
application system in which new matter can be
added upon filing a divisional application. In thismanner, if the parent application is not to bedeemed to have been withdrawn under the
CIP-type application system, the relation of thesystem with the divisional application system
must be sorted out, also with an eye to allowing
addition of new matter in a divisional application.
3

Other Problems(1) Third parties’ monitoring burden
When a CIP-type application is filed, third
parties would have to determine what kind ofmatter has been added by the CIP-typeapplication and whether or not that matter is new
matter, among other things. Also, there could bemany applications whose outcome is undecided.
(2) Examination burden
If a CIP-type application system were to be
introduced in Japan, an increase in examination
burden should also be considered. Also, analysis
should be made regarding the examination burden
by also making comparison with the case of filinga separate, independent application.

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(3) Prosecution laches
With regard to an act of repeatedly filing
CIP-type applications, an applicant will not be able
to delay the expiration of the patent term unlessthe patent term is counted from the filing date of
the CIP-type application under the system, so thiskind of problem will not occur, in principle.
(4) Convenience in terms of patent strategy
and patent management
If a CIP-type application system is
introduced, an applicant will be able to choose
between filing a separate, independent applicationand filing a CIP-type application according tohis/her patent strategy. Also, improvement
inventions, etc. can be integrated into a single
application by filing CIP-type applications, so thesystem will also have a merit on applicants andpatentees in terms of patent management.

Ⅵ Concluding Remarks
A CIP-type application system is considered
to be beneficial for applicants, and theappropriateness of its introduction would boil
down to the question of how to achieve balance
between protection of the applicant or the ownerof the patent and the interests of the public.
Considering the present Japanese policy, positive
study should be made on allowing CIP-typeapplications to be filed within one year and six
months from the filing date of the parent
application, in order to achieve appropriate
protection of basic/fundamental inventions andcomprehensive protection of improvement
inventions, etc. As for the filing of a CIP-typeapplication after publication of the parent
application, consideration should be made alongwith the debate on provisions on the grace period.
Under the CIP-type application system, newmatter is not entitled to the benefit of theparent’s filing date, so it differs from theargument seeking relaxation of the requirements
for amending the specification, etc. At the sametime, consideration should be made as to such
detriments as a concern for an increase in third
parties’ monitoring burden.

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