The U.S. Patent and Trademark Office’s Appeals Review Panel (ARP) issued a precedential decision on August 6, 2026 in Ex parte Baurin (Appeal 2024-002920), reinstating the examiner’s obviousness-type double patenting (OTDP) rejection of claims 1–18. The panel concluded that Federal Circuit precedent still recognizes an independent anti-harassment rationale for OTDP even where the later patent would not create an unjustified timewise extension of exclusivity. The concern is that separately owned patents covering obvious variants of the same invention could expose licensees or accused infringers to repeated assertions by different owners; the USPTO’s terminal disclaimer framework, including its common-ownership requirement, is intended in part to address that risk.
For U.S. prosecution strategy, the practical point is straightforward: applicants cannot assume that the absence of a later expiration date ends the OTDP inquiry. Related applications, overlapping inventorship and portfolios that may later be divided among different owners still warrant a coordinated review of OTDP, terminal disclaimers and ownership structure. The ARP itself also questioned whether anti-harassment should remain a freestanding rationale because of the costs it may impose on innovation, leaving further clarification to the Federal Circuit. Until that occurs, applicants should treat anti-harassment as part of the USPTO’s current precedential OTDP framework rather than relying on patent-term comparison alone.
