Can an applicant traverse a species requirement?
Yes, an applicant can traverse (i.e., dispute or argue against) a species requirement. The MPEP 808.01(a) does not explicitly discuss traversal, but it is a standard right in patent prosecution. To traverse a species requirement, an applicant should:
- Respond to the Office Action containing the requirement within the given time frame
- Provide arguments explaining why the species are not patentably distinct
- Optionally, elect a species for examination “with traverse”
Effective traversal arguments might include:
- Demonstrating that the species are not mutually exclusive
- Showing that the species are obvious variants of each other
- Arguing that examining all species would not pose an undue burden on the examiner
If the examiner finds the traversal arguments persuasive, they may withdraw the species requirement. Otherwise, the requirement will be made final, and the applicant must elect a species for examination.
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