What Is a “Bypass” Patent Application and How Is It Useful?

DEREK FAHEY, ESQ.

There are several types of utility patent applications, and the appropriate filing depends on the invention, its development, and the applications already filed to protect it. One option is a bypass application.

Copendency and Priority

A later patent application may claim the benefit of an earlier application when the applications are properly related and copending. Timing matters because prior art and the loss of a pending parent application can affect whether later claims receive the earlier filing date.

What Is a Bypass Application?

A bypass application is a U.S. continuation-type application that claims the benefit of a Patent Cooperation Treaty application. Rather than entering the conventional U.S. national stage, the applicant files under the domestic continuation framework.

Potential Benefits

A bypass filing may be useful when no related U.S. application remains pending, when an applicant needs to preserve the benefit of an earlier filing, or when additional time and flexibility are important. It may also permit the applicant to add subject matter in a continuation-in-part approach, which is not available through ordinary national-stage entry.

Strategic Timing

The timing and type of patent application can materially affect an intellectual property portfolio. Applicants should evaluate PCT deadlines, copendency, claim strategy, development plans, and budget with registered patent counsel.