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820.01 Old Combination Claimed - Not an Election - 800 Restriction in Applications Filed Under 35 U.S.C. 111; Double Patenting


820.01 Old Combination Claimed - Not an Election

Where an application originally presents claims to a combination (AB) and the examiner holds the novelty, if any, to reside only in the subcombination (B) per se (see MPEP § 806.05(b)), and the claims directed to the combination are rejected, subsequently presented claims to subcombination (B) of the originally claimed combination should not be held constructively nonelected on the ground of previous election of the combination. See MPEP § 821.03. Ex parte Donnell, 1923 C.D. 54, 315 O.G. 398 (Comm'r Pat. 1923). The combination and subcombination as defined by the claims under this special situation are not for distinct inventions. See MPEP § 806.05(c).

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