MPEP Section 818.03(d), Traverse of **>Restriction Requirement With< Linking Claims

Executive summary:

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818.03(d) Traverse of **>Restriction Requirement With< Linking Claims

Election >of a single invention in reply to a restriction requirement,< combined with a traverse of >only< the nonallowance of the linking claims*>,< is an agreement with the position taken by the Office that restriction is proper if the linking* claim is not allowable and improper if **>it is< allowable. If the Office allows such a claim, it is bound to withdraw the requirement and to act on all linked inventions >which depend from or otherwise require all the limitations of the allowable linking claim<. But once all linking claims are canceled 37 CFR 1.144 would not apply, since the record would be one of agreement as to the propriety of restriction.

Where, however, there is a traverse on the ground that there is some relationship (other than and in addition to the linking* claim) that also prevents restriction, the merits of the requirement are contested and not admitted. ** If restriction is made final in spite of such traverse, the right to petition is preserved even though all linking claims are canceled. >When a final restriction requirement is contingent on the nonallowability of the linking claims, applicant may petition from the requirement under 37 CFR 1.144 without waiting for a final action on the merits of the linking claims or applicant may defer his or her petition until the linking claims have been finally rejected, but not later than appeal. See 37 CFR 1.144 and MPEP § 818.03(c).<