I have a complex question about whether you have to claim priority all the way back to the earliest filed parent application or, because we are filing a CIP of a CIP can we only claim priority back to the first CIP>
Parent App. filed in 1990 disclosing A+B;
CIP #1 filed in 1993 off of Parent App. claiming A+B+C;
CIP #2 Filed in 1995 off of CIP#1 claiming B+C+D;and
CIP #3 filed in 1997 off of CIP#2 claiming C+D+E.
In CIP#3, can I claim my earliest priority document is CIP#1, because I do not need the disclousre of the Parent App. to extend my patent term? Said differently, can I cut off the chain of a patent family by only claiming priority to a child application (in this case CIP #1) to extend the patent term of a later filed CIP? (please ignore the fact that these are past dates and assume we are in 1997. This is what an applicant did and now they are trying to assert their CIP #3 against us. If they are required to use the Parent App. then CIP #3 is expired and we are free to practice. If they are allowed to do this, then CIP #3 is alive until 2013.
MPEP 2701 states:
(2) TERM.-Subject to the payment of fees under this title, such grant shall be for a term beginning on the date on which the patent issues and ending 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application or applications under section 120, 121, or 365(c) of this title, from the date on which the earliest such application was filed.
Not sure how the "specific reference" is interpreted.