What happens to non-elected claims after an election without traverse?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

After an election without traverse, non-elected claims are typically withdrawn from consideration. The MPEP 821.02 provides guidance on this process:

Claims to the nonelected invention should be treated by using form paragraph 8.06.

Form paragraph 8.06 states:

Claim [1] withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected [2], there being no allowable generic or linking claim.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 the reply filed on [3].

If the application is ready for allowance, non-elected claims that are not eligible for rejoinder may be canceled by an examiner’s amendment. However, claims directed to non-elected species or inventions that are eligible for rejoinder should be rejoined rather than canceled.