Re:Comments on the article... (Score 1)

Legally, and that's all that counts here, a continuation is a patent application that claims the filing date of an earlier filed application. It must be filed while the earlier application is still pending in order to receive the earlier date for the material commonly disclosed by both. The disposition of the earlier case, whether under rejection or notice of allowance has no bearing whatsoever on whether continuation status is granted. A later filed case claiming priority to an earlier filed case, and which adds new subject matter is called a "continuation-in-part", or CIP, and is only entitled to the earlier date on the common subject matter assuming all other criteria are met. There's no way a drug company can file a continuation for an earlier application right before the patent to the earlier case expires unless they've kept a line of applications to the original application pending all along. The line of pendancy does not need to be entirely through U.S. application - it can detour through foreign filings as well, typically PCT filings. There's nothing to prohibit an applicant from claiming the same thing in a continuation as was claimed in the parent case, and the practice is typically done when the application gets "finally rejected" by the examiner before the applicant feels comfortable appealing the examiner's decision. In the past, before patent protection ran twenty years from date of filing (it was 17 years from date of issue) and before applications were published devious inventors used to prosecute their applications up to the time the examiner notified them the application was allowable, ready to issue as a patent, and then abandon the application while filing a continuation of it. They could do this indfinitely or until somebody else developed a market for the invention, then they would allow the application to issue as a patent and sue everybody in the now thriving market for infringement of their "submarine" patent. Drug companies have been criticized for filing new applications (not continuations) for old drugs whose patents are about to expire and making slightly, in many cases obvious modifications of the old drugs. Like different dosages, or form (tablet vs capsule) for example. By doing so they can list the drug in the FDA "orange book" as being under patent prosecution which stops any generic manufacturers from making the drug for at least 60 days. Even though they know the applications will never stand up to examination the smart drug companies know that if they're making $5B/yr on a particular drug that's about to have its patent expire then a two month extension is worth, well, you do the math...