Claim [1] directed to the same invention as that of claim [2] of commonly assigned [3] . Under 35 U.S.C. 101 , more than one patent may not be issued on the same invention. The USPTO may not institute a derivation proceeding in the absence of a timely filed petition. The U.S. Patent and Trademark Office normally will not institute a derivation proceeding between applications or a patent and an application having common ownership (see 37 CFR 42.411 ). The applicant should amend or cancel claims such that the reference and the instant application no longer contain claims directed to the same invention.