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821.02 After Election Without Traverse - 800 Restriction in Applications Filed Under 35 U.S.C. 111; Double Patenting
821.02 After Election Without Traverse
Where the initial requirement is not traversed, if adhered to, appropriate action should be given on the elected claims. 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 Paper No. [2] is acknowledged.
¶ 8.25.02 Election Without Traverse Based on Incomplete Reply
Applicant's election of [1] in Paper No. [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 § 818.03(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¶ 8.06 Claims Stand Withdrawn Without Traverse
Claim [1] withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected [2], there being no allowable generic or linking claim.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 Paper No. [3].
Examiner Note
In bracket 2, insert --invention--, or --species--.
This will show that applicant has not retained the right to petition from the requirement under 37 CFR 1.144.
Under these circumstances, when the application is otherwise ready for issue, the claims to the nonelected invention, including nonelected species, may be canceled by an examiner's amendment, and the application passed to issue. However, where the application contains an allowed generic claim, and applicant has not been previously notified as to the allowance of a generic claim, the examiner must, prior to canceling the nonelected claims, notify applicant of the allowance of a generic claim and give applicant a time limit of 1-month (not less than 30 days) to conform all of the claims to the nonelected species to fully embrace an allowed generic claim. See MPEP § 809.02(c). The examiner's amendment should include form paragraph 8.07.
¶ 8.07 Ready for Allowance Without Traverse
This application is in condition for allowance except for the presence of claim [1] to [2] nonelected without traverse. Accordingly, claim [3] been canceled.
Examiner Note
In bracket 2, insert --an invention--, --inventions--, --a species--, or --species--.
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