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809.02(b) Election Required - Generic Claim Allowable - 800 Restriction in Applications Filed Under 35 U.S.C. 111; Double Patenting
809.02(b) Election Required - Generic Claim Allowable
When a claim generic to two or more claimed species is found to be allowable on the first or any subsequent action on the merits and election of a single species has not been made, applicant should be informed that the claim is allowable and generic, and a requirement should be made that applicant elect a single species embraced by the allowed genus unless the species claims are all in the form required by 37 CFR 1.141 and no more than a reasonable number of species are claimed. Form paragraph 8.48 may be used.
¶ 8.48 Generic Claim(s) Allowable, No Election of Single Species
Allowed claim [1] generic to a plurality of disclosed patentably distinct species comprising [2]. Applicant is required under 35 U.S.C. 121 to elect a single disclosed species embraced by the allowed genus.
Applicant is advised that a complete reply to this requirement must include an identification of the species that is elected and a listing of all claims readable thereon. Applicant is entitled to consideration of claims to a reasonable number of disclosed species in addition to the elected species provided all the claims to each additional species are written in dependent form or otherwise include all the limitations of an allowed generic claim as provided by 37 CFR 1.141. Applicant's reply must include an identification of such additional species along with a listing of the claims readable on each additional species.
Examiner Note
1. This form paragraph is to be used whenever a claim generic to two or more species is found to be allowable and election of a single disclosed species embraced thereby has not been made of record.
2. In bracket 1, identify the claim(s) found to be generic and allowable.
3. In bracket 2, identify the plurality of species embraced by the allowed generic claim(s).
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