What constitutes an election other than express in patent applications?
An election other than express in patent applications can occur in several ways, as outlined in MPEP 818.02. These include:
- Election by originally presented claims
- Election in cases with only generic claims or linking claims
- Election by optional cancellation of claims
- Election by cancellation of claims without an express election statement
The MPEP states, “Election may be made in ways other than by explicitly or expressly identifying the elected invention or in reply to a requirement.” This means that an applicant’s actions, such as the claims they present or cancel, can effectively constitute an election even without an explicit statement.
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