You’ve built something amazing. Maybe it’s a new hardware setup, a smarter algorithm, a unique user interface—something that’s not just cool, but actually new. You’re protecting it with a patent. Smart move. But here’s the twist most founders don’t see coming: just because your idea is new, doesn’t mean the patent office will say yes right away. Especially if you already have another patent filing that’s kind of…close.
What Is Obviousness-Type Double Patenting, Really?
It’s Not About What You Invented—It’s About What You Claimed
Here’s the twist that catches many technical founders off guard: obviousness-type double patenting isn’t really about whether you’ve built something new.
It’s about whether the claims in your new patent application are different enough from the claims in your older patent.
In other words, the patent office doesn’t read your invention like a human does.
They’re not thinking about your roadmap, your product differentiation, or the user value.
They’re looking at your claim language.
If two sets of claims—even from very different inventions—look too close in scope, the examiner might issue a rejection for obviousness-type double patenting.
So even if your new invention feels like a whole new direction to you, if the claims overlap in the wrong way, you’re in trouble.
That’s why understanding how claims are structured—and how to strategically differentiate them—is key to avoiding this type of rejection.
Think in Terms of Claim Families, Not Just Features
Many founders and technical teams think in terms of product features.
But the patent system works in terms of claims and how they’re grouped across families of filings.
If your first patent claims a method of processing data in a unique way, and your second patent claims a slightly modified method or a similar system implementation, that could trigger double patenting—even if the second feature is months newer and tied to a totally different use case.
The key move here is to structure your patent portfolio not just by filing whatever’s new, but by mapping out your claim coverage across the family.
That means identifying what your first patent really covers at the claim level, then ensuring that your new application has a clear, distinct technical advance in its own claims.
If you’re working with outside counsel or using a platform like PowerPatent, you should ask for a claim mapping analysis before filing anything new.
That way, you’re not walking into a rejection you could’ve avoided.
Filing Strategy: Time It Right and Split Your Concepts
Another issue that causes double patenting headaches is filing too close together without enough technical separation.
If you file several applications around the same time, and they’re all spinning out of the same core innovation, the patent office might view them as too close—no matter how different they feel internally.
A smart workaround here is intentional claim separation. That means identifying what piece of your invention belongs in which patent before filing.
One patent might claim the system architecture. Another might claim the user interface layer. A third might focus on the data structure.
By creating that clean separation upfront, you lower the chance that one claim looks like an obvious tweak of another.
You also set yourself up for stronger enforcement later—because each patent stands on its own legs.
This approach also gives you flexibility.
If you ever need to license your IP, or assert it, you’ve got multiple distinct assets instead of one crowded patent with overlapping parts.
Don’t Wait for the Rejection—Run a Risk Check First
Most startups only hear about obviousness-type double patenting when the rejection hits. That’s too late.
At that point, you’re either filing a terminal disclaimer or trying to walk back and rewrite your claims.
But you can get ahead of it. Every time you’re preparing a new patent filing, compare the new claims to your existing ones.
Not just loosely—but claim-by-claim. Is the new set claiming something the old one already covers? Is it just a slight twist?
Could an examiner reasonably say the second set would have been “obvious” based on the first?
PowerPatent helps automate this. You enter your existing patent numbers and your draft claims, and the platform flags overlaps that could raise a red flag.
That’s a huge time saver and gives you an edge—because you can adjust your claims before the examiner ever sees them.
This isn’t just legal hygiene. It’s a strategic move that saves you time, keeps your patent term intact, and avoids the kind of ownership entanglements that can create major issues during funding or acquisition.
The Business Cost of Getting It Wrong
Here’s the real reason to take this seriously: investors and acquirers do.
If they’re looking at your IP and see terminal disclaimers everywhere, they know your patents are tied together.
That limits their value and makes them harder to monetize individually.
It also sends a signal that your patent strategy might have been reactive instead of intentional.
Getting out in front of obviousness-type double patenting is about more than avoiding rejections.
It’s about building clean, standalone patent assets that grow with your business, not against it. That’s something every founder should care about.
And with the right tools and the right guidance, it’s totally doable—without slowing down your roadmap.
What Is a Terminal Disclaimer?
It’s a Legal Shortcut with Strategic Consequences
At face value, a terminal disclaimer is just a document you file with the patent office.
It says, “We agree that this second patent won’t last any longer than the first one, and we’ll keep them owned by the same entity.”
But it’s not just a form. It’s a strategic decision.
And once you file it, you lock in certain outcomes that will affect how you use, license, enforce, or even sell that patent down the line.
The real power of a terminal disclaimer is that it can keep your second patent alive when it’s under threat. It can turn a rejection into a grant.
But it’s not a get-out-of-jail-free card—it’s a tradeoff. You’re sacrificing time and flexibility in exchange for certainty.
This matters a lot for startups. Because every move you make with your IP affects your long-term leverage.
You’re not just trying to “get the patent.” You’re building assets that investors, partners, or acquirers will scrutinize closely.
A terminal disclaimer can help you get to a granted patent faster—but it can also create limitations that are hard to unwind later.
Where Terminal Disclaimers Help—and Where They Hurt
There are situations where a terminal disclaimer is absolutely the right move.
If your claims are unavoidably close to earlier ones, and the overlap is justified by your product roadmap, then disclaiming the extra term and locking in common ownership may be a small price to pay.
Especially if time is critical—maybe you’re in the middle of due diligence or preparing for a product launch and need that patent granted quickly.
But there are also scenarios where filing a terminal disclaimer can quietly weaken your IP position.
If you later want to license the second patent independently, or if it turns out to cover a killer feature your original patent didn’t, then the limitations of that disclaimer could hurt you.
You’ll be stuck managing both patents as a unit. You can’t split them up without risking invalidation.
That’s not just inconvenient—it can cost you real opportunities.
This is why founders should never treat a terminal disclaimer as a simple formality. It’s not. It’s a business decision disguised as a procedural step.
That means it deserves the same level of strategic thought you’d give to pricing, equity, or partnerships.
Know What You’re Signing Away
One of the most overlooked aspects of a terminal disclaimer is the loss of future optionality. Once you tie two patents together, you can’t untie them.
You’ve told the patent office—and the world—that these two inventions are close enough to live and die together.
From that point forward, every business deal involving those patents will have to account for that tie.
You can’t grant an exclusive license on the second patent without also doing something with the first.
You can’t sell the second patent on its own. You can’t assign it to a spin-out or strategic partner unless the first patent comes with it.
This might not feel like a big deal today. But in two years?
When your product evolves, or a new buyer shows up, or you need to carve out part of your IP for a joint venture? That locked-in ownership can become a massive constraint.
So the advice here is simple: don’t file a terminal disclaimer until you’ve played out the future scenarios.
Think about how the second patent might be used on its own.
Think about whether its term could matter if it protects a feature that ships later.
Think about how your ownership structure might evolve—especially if you’re planning international expansion, IP licensing, or an acquisition.
Terminal disclaimers aren’t bad. But they are final. So treat them that way.
How to Make the Decision with Confidence
The smartest way to approach terminal disclaimers is to treat them as a plan B—not plan A. First, evaluate whether the rejection is even valid.
Just because the examiner flagged it doesn’t mean they’re right.
You might have a strong argument that your second patent is different enough. If that’s the case, make the argument. Try to win on merit.
If the overlap is real and the rejection is justified, then assess the value of the second patent independently.
Could it have a longer useful life than the first? Could it be licensed, sold, or enforced on its own?
Does it cover a feature that hasn’t launched yet, but will be key down the road?
If the answer to any of those is yes, then think twice before disclaiming.
And if you do decide to file a terminal disclaimer, do it with intention. Document why. Make sure your internal team knows what it means.
Flag the patent in your portfolio as being tied to another. Build it into your long-term IP strategy.
PowerPatent makes this process easier. Our platform helps analyze whether a terminal disclaimer is the best move—or just the fastest one.
We simulate different scenarios, highlight the legal and commercial consequences, and make sure you understand what you’re signing.
You get clarity, not just convenience.
Because when it comes to patents, the smartest decisions are the ones you don’t have to undo later.
Why This Matters More for Startups
You Don’t Just Need Patents—You Need Strategic Leverage
Startups operate under pressure. Pressure to grow. Pressure to move fast. Pressure to protect what’s being built—without slowing down the build itself.
In that kind of environment, patent decisions aren’t just legal calls. They’re business moves.
And obviousness-type double patenting is one of those quiet issues that can undermine your leverage if you’re not careful.
You’re not filing patents for the sake of paper. You’re creating leverage points for future deals, defensibility against incumbents, and signals for investors.
Every asset you file needs to earn its place in your portfolio. And every restriction—like a terminal disclaimer—has to be worth the trade.
That’s why this topic hits startups harder than it hits large enterprises. At scale, companies can afford inefficiencies.
They can file overlapping patents, tie them together, and absorb the loss in flexibility. But you?
You need every patent to pull its weight. That means avoiding traps like unnecessary disclaimers or sloppy claim overlap.
Each Patent Should Be a Distinct Strategic Asset
In a startup, your patents should act like puzzle pieces—not copies of the same piece over and over.
When you think about obviousness-type double patenting, the key isn’t just preventing overlap—it’s about building non-redundant coverage that protects multiple angles of your tech.
This means each patent should stake out a different position. One might lock down your backend architecture.
Another might protect your algorithm’s training logic. A third could cover user-side applications.
They should each serve a role, just like different team members do. And when that’s true, you’ll avoid double patenting problems by design—not reaction.
But to get there, you need a coordinated filing plan. Not just ad hoc filings driven by what’s new in the codebase that week.
You need to zoom out, look at your entire innovation landscape, and build a roadmap that spaces out your claims in smart, non-overlapping ways.
PowerPatent’s IP roadmap tool helps startups do exactly that.
It lets you visualize your existing claims, spot areas of overlap, and decide where the next filing should go—so that each patent earns its place.
Terminal Disclaimers Can Kill IP Flexibility Later
Let’s say you go ahead and file a terminal disclaimer to get past a rejection. No big deal, right?
The patent gets granted, you keep moving, and everything seems fine. But fast-forward two years.
You’re negotiating a licensing deal with a larger player in an adjacent space.
They want rights to one specific patent—your second one, the one that had the terminal disclaimer.
But now there’s a problem. You can’t license it cleanly. That patent is tied to the first one.
So unless you’re ready to include both in the deal—or untangle complex ownership issues—you’re stuck.
You either give away more than you wanted, or you walk away from the deal altogether.
This is the kind of real-world impact that makes terminal disclaimers a business risk.
The issue isn’t the form itself—it’s what that form takes off the table later.
It reduces your flexibility in dealmaking, enforcement, and even monetization. For startups that live or die by optionality, that’s a big deal.
Investors Look for Clean IP
When you raise capital, your investors look closely at your IP—especially if you’re in deep tech, SaaS, biotech, or AI.
They’re not just looking for granted patents. They’re looking at how those patents are structured.
Are they stand-alone? Are they strategically spaced out? Are they clearly defensible?
If they see a chain of patents all tied together through terminal disclaimers, that’s a red flag. It suggests reactive filing.
It suggests overlapping coverage. And it suggests that your portfolio might not hold up under scrutiny or litigation.
The message here is simple: clean IP tells a story of thoughtful execution.
It tells your investors that you’re not just innovating—you’re protecting your innovation in a way that’s built to scale.
Avoiding unnecessary terminal disclaimers is a key part of that story.
Use Your Startup Agility to Your Advantage
Large companies move slow. They have legacy systems, internal politics, and long approval chains. You don’t. That’s your edge.
You can build an IP strategy that adapts as you grow. You can update your filing roadmap monthly.
You can integrate your R&D and patent process in real time. You can make every patent application part of your larger business strategy—not a siloed legal task.
This agility is your moat, but only if you use it.
Start by making obviousness-type double patenting part of your regular claim review. Look at how your filings are stacking.
Check for unnecessary overlaps. Run pre-filing checks to flag claim similarities. Ask yourself: if this second patent had to stand alone, would it?
When you do that, terminal disclaimers become something you use with intention—not something you fall into out of convenience.
And that’s how startups win. Not just by filing patents—but by filing them smarter, cleaner, and more strategically than the big guys ever could.
The Hidden Costs of Filing a Terminal Disclaimer
You’re Not Just Giving Up Time—You’re Giving Up Leverage
When you file a terminal disclaimer, most people focus on the one thing they’re giving up: patent term.
The new patent ends when the original one ends, even if it could’ve lasted longer. But that’s only the surface-level cost.
The deeper cost is about leverage. When your patents are tied together by a terminal disclaimer, your ability to use them separately is gone.
That means fewer negotiation options, reduced licensing potential, and limitations on how your IP plays into your growth strategy.
Leverage, in business, is about having options.
A terminal disclaimer narrows those options without giving you any new advantage—other than avoiding a rejection. That’s why it’s not just a legal form.
It’s a strategic trade you’re making, and one that should always be measured against the long-term value of the patent you’re giving up control over.
The Long-Term Value of a Patent Isn’t Always Clear at Filing
Here’s where this gets even trickier. When you’re filing a new patent, it’s often hard to predict which one will end up being the most valuable.
The second patent—the one you’re about to tie down with a terminal disclaimer—might seem like a minor continuation today.
But over time, product strategy shifts. Markets evolve. Features that seemed like add-ons suddenly become core differentiators.
By filing a terminal disclaimer too early, you might unintentionally cap the value of the one patent that ends up being your biggest IP asset.
And once the disclaimer is on record, you can’t walk it back.
That’s why the smartest approach is to delay filing a terminal disclaimer as long as possible.
Use the time to evaluate where your product and market are headed. Run claim strategy sessions with your legal team.
See how the claims of the second patent could develop into something broader or more distinct.
The more you know about its standalone value, the more informed your decision will be.
Your Future Licensing Strategy Depends on Clean Ownership
When companies grow, they look for new revenue streams.
Licensing unused patents is one of the most powerful ways to generate revenue without spending more on development.
But licensing only works when you can offer clean, stand-alone rights.
A terminal disclaimer complicates this. It locks the second patent to the first one.
So if a strategic partner wants rights to your second patent—and not the first—you can’t offer that cleanly.
You’re forced into complicated license structures, joint licenses, or limited use cases. And in many cases, that kills the deal.
Think about that before you disclaim. Ask yourself whether this second patent could become a licensing opportunity in the future.
If the answer is yes—or even maybe—you need to be cautious. Tying it to an earlier patent today might block a potential revenue stream tomorrow.
Terminal Disclaimers Can Create Invalidation Risk in M&A
In any merger or acquisition deal, the buyer will run due diligence on your patents.
They’ll look for strength, enforceability, and freedom to operate. If they see terminal disclaimers, they’ll start asking questions.
They’ll want to know if both patents are still under common ownership.
If any transfer or assignment broke that chain—even unintentionally—that second patent might be unenforceable.
And if your startup has changed structure, added holding companies, or reallocated IP, it’s easy to accidentally breach the ownership requirement tied to the disclaimer.
That puts you in a risky spot. A buyer might lower their valuation.
A deal might stall. Or worse, they might demand you fix the issue before closing, which can create unexpected legal costs or delays.
The way to avoid this is to create a system around terminal disclaimer tracking. If you file one, document it. Tie it into your IP database.
Make sure your operations, legal, and finance teams all know what it means.
Build a process to ensure common ownership stays intact—especially as your company grows and the cap table gets more complex.
PowerPatent helps simplify this. Our platform tracks all disclaimers across your portfolio, flags risks automatically, and makes sure you don’t miss critical ownership steps during transfers or reorganizations.
That’s peace of mind, not just for now—but for the next round or exit.
Avoiding the Wrong Terminal Disclaimer Is a Competitive Advantage
Here’s the upside of doing this right. Most companies don’t. They file terminal disclaimers reactively. They don’t map their claim strategy.
They don’t measure the tradeoffs. They get the patent issued and move on—only to discover down the line that their flexibility is gone.
If you can be the startup that treats terminal disclaimers as strategic levers—not shortcuts—you gain a real edge.
Your patent portfolio becomes cleaner, stronger, and more modular. You keep control over your assets.
And when it’s time to enforce, license, or sell, your options are wide open.
It’s not just about avoiding a problem. It’s about building smarter. Your IP should be an accelerator, not a constraint.
And that starts with the decisions you make on day one—especially the ones that seem small, like a terminal disclaimer.
Wrapping It Up
Patents aren’t just protection. They’re leverage. And in the startup world, where every advantage counts, how you protect your IP matters just as much as what you protect.
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