Can I cancel all claims to the elected invention and present only claims to the non-elected invention?
No, you cannot cancel all claims to the elected invention and present only claims to the non-elected invention after an election by original presentation. Such an amendment is considered non-responsive and will not be entered. The MPEP 821.03 clearly states:
“An amendment canceling all claims drawn to the elected invention and presenting only claims drawn to the nonelected invention should not be entered. Such an amendment is nonresponsive.”
If you submit such an amendment, the examiner will notify you using form paragraph 8.26, which explains that the amendment is non-responsive and has not been entered. You will typically be given a shortened statutory period (usually two months) to supply the omission or correction to avoid abandonment of the application.
If you wish to pursue only the non-elected invention, you should consider filing a divisional application instead of attempting to cancel all elected claims in the current application.
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