Can an applicant traverse a species election requirement in a patent application?
Yes, an applicant can traverse a species election requirement in a patent application. The MPEP 809.02 provides guidance on this process:
“If applicant traverses the requirement, applicant should present arguments why election should not be required or why all of the species are allowable.”
When traversing a species election requirement:
- Provide clear arguments explaining why the requirement is improper or unnecessary.
- If applicable, demonstrate how all species are sufficiently related to be examined together without undue burden on the examiner.
- Address any specific points raised by the examiner in the restriction requirement.
- If possible, show how all species are allowable over the prior art.
The examiner will consider the traversal arguments and either maintain the requirement or withdraw it if convinced by the applicant’s reasoning. If the requirement is maintained, the applicant must still make an election to continue prosecution, even under protest.
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