Obviousness Type Double Patenting and the Hatch-Waxman Act

Obviousness type double patenting (ODP), or non-statutory double patenting, is a judicially created doctrine meant to prevent a party from extending an earlier commonly owned patent’s term by claiming patentably indistinct subject matter through claims in a later patent. An ODP rejection of the second patent application with indistinct patentable claims can be overcome by filing a terminal disclaimer as long as both patents are commonly owned or a joint research agreement exists for both patents.