How are non-elected process claims treated after product claims are found allowable?

When product claims are found allowable and non-elected process claims include all the limitations of the allowable product claims:

• The non-elected process claims may be subject to rejoinder.
• The examiner should consider rejoinder of these claims.
• If rejoinder is appropriate, the examiner should notify applicant of the potential for rejoinder.

MPEP 821 states: “Where product and process claims drawn to independent and distinct inventions are presented in the same application, applicant may be called upon under 35 U.S.C. 121 to elect claims to either the product or process. … However, if applicant elects claims directed to the product, and a product claim is subsequently found allowable, withdrawn process claims that depend from or otherwise include all the limitations of the allowable product claim will be rejoined.”

To learn more:

• non-elected process claims
• allowable product claims
• rejoinder