MPEP 818.01(c)
Traverse is Required To Preserve Right of Petition

This is the Ninth Edition of the MPEP, Revision 08.2017, Last Revised in Januay 2018

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818.01(c)    Traverse is Required To Preserve Right of Petition [R-07.2015]

37 C.F.R. 1.144  Petition from requirement for restriction.

After a final requirement for restriction, the applicant, in addition to making any reply due on the remainder of the action, may petition the Director to review the requirement. Petition may be deferred until after final action on or allowance of claims to the invention elected, but must be filed not later than appeal. A petition will not be considered if reconsideration of the requirement was not requested (see § 1.181 ).

To preserve the right to petition from the requirement for restriction, all errors to be relied upon in the petition must be distinctly and specifically pointed out in a timely filed traverse by the applicant. The petition may be deferred until after final action on or allowance of the claims to the elected invention. In any event, the petition must not be filed later than the filing date of the notice of appeal. If applicant does not distinctly and specifically point out supposed errors in the restriction requirement, the election should be treated as an election without traverse and be so indicated to the applicant by use of form paragraph 8.25.02.

¶ 8.25.02    Election Without Traverse Based on Incomplete Reply

Applicant’s election of [1] in the reply filed on [2] is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).