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818.03(c) Must Traverse To Preserve Right of Petition - 800 Restriction in Applications Filed Under 35 U.S.C. 111; Double Patenting
818.03(c) Must Traverse To Preserve Right of Petition
37 CFR 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 Commissioner 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).
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 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)).
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