MPEP 821.02
After Election Without Traverse

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

Previous: §821.01 | Next: §821.03

821.02    After Election Without Traverse [R-07.2015]

Where the initial requirement is not traversed (either expressly or by virtue of an incomplete reply), the examiner should take appropriate action on the elected claims including determining whether the restriction requirement should be withdrawn in whole or in part. See MPEP § 821.04. Form paragraphs 8.25.01 or 8.25.02 should be used by the examiner to acknowledge the election without traverse.

¶ 8.25.01    Election Without Traverse

Applicant’s election without traverse of [1] in the reply filed on [2] is acknowledged.

¶ 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)).

Claims to the nonelected invention should be treated by using form paragraph 8.06.

¶ 8.06    Claims Stand Withdrawn Without Traverse

Claim [1] withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected [2], there being no allowable generic or linking claim. Election was made without traverse in the reply filed on [3].

Examiner Note:

In bracket 2, insert --invention--, or --species--.

This form paragraph will show that applicant has not retained the right to petition from the requirement under 37 CFR 1.144.

When applicant has not retained the right to petition the restriction requirement and the application is otherwise ready for allowance, the claims to the nonelected invention, except for claims directed to nonelected species and nonelected inventions eligible for rejoinder, may be canceled by an examiner’s amendment, and the application passed to issue.

The examiner should use form paragraph 8.07 in this situation.

See also MPEP § 821.01 and § 821.04 et seq.

¶ 8.07    Ready for Allowance, Non-elected Claims Withdrawn Without Traverse

This application is in condition for allowance except for the presence of claim [1] directed to [2] nonelected without traverse. Accordingly, claim [3] been canceled.

Examiner Note:

In bracket 2, insert --an invention--, --inventions--, --a species--, or --species--.

Note that even if an election was made without traverse, claims directed to nonelected species and nonelected inventions that are eligible for rejoinder should be rejoined; if not rejoined, such claims may only be cancelled by examiner’s amendment when the cancellation is expressly authorized by applicant.