MPEP Section 818.03(d), Traverse of **>Restriction Requirement With< Linking Claims
Executive summary:
This document contains Section 818.03(d) ("Traverse of **>Restriction Requirement With< Linking Claims") of the Manual of Patent Examining Procedure (the "M.P.E.P."), Eighth Edition, Eighth Revision (July 2010). This page was last updated in January 2011. You may return to the section index to find a particular section. Alternatively, you may search the MPEP using the search box that appears on the left side of every page of BitLaw--you may restrict your search to the MPEP on the search results page.
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818.03(d) Traverse of **>Restriction Requirement With< Linking Claims [R-3]
**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).<
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