To preserve the priority date of a parent application, what must be true about the divisional/continuation application?

The correct answer pertains to the requirement that a divisional or continuation application must reference the parent application and be filed while the parent application is still pending in order to preserve the priority date. This is crucial because the priority date establishes the time from which the inventor's rights are calculated and is significant in determining the novelty and non-obviousness of the claimed invention.

Filing a divisional or continuation application while the parent application is pending ensures that the new application can benefit from the parent’s earlier filing date, which can be crucial in a patent examination context where prior art may emerge. The reference to the parent application in the filing of the divisional or continuation application is necessary to clearly identify the relationship between the two applications.

This preservation of priority is not achieved by filing after the parent application has been granted, as doing so would mean that the new application would be treated as a separate entity without the benefit of the earlier filing date. Similarly, the requirement does not stipulate that a new inventor must be included, nor does it require that the application be filed in a foreign country. Therefore, the critical factor is the timely filing of the divisional or continuation application while the parent application is pending, along with the necessary reference to the parent application.