What are the exceptions to the transitional application provisions?
There are three main exceptions to the transitional application provisions under 37 CFR 1.129(b)(1). An applicant will not be permitted to have additional inventions examined in an application if:
- (A) The requirement was made in the application or an earlier application relied on under 35 U.S.C. 120, 121, or 365(c) prior to April 8, 1995;
- (B) No restriction requirement was made with respect to the invention(s) in the application or earlier application prior to April 8, 1995, due to actions by the applicant; or
- (C) The required fee for examination of each additional invention was not paid.
The MPEP states, “Only if one of these exceptions applies is a normal restriction requirement appropriate and telephone restriction practice may be used.” This means that if any of these exceptions are met, the application will be subject to standard restriction practices rather than the special provisions for transitional applications.
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