When can a patent examiner require an election of species?

A patent examiner can require an election of species in specific circumstances, as outlined in MPEP 818.02(b):

“Where only generic claims are first presented and prosecuted in an application in which no election of a single species of that genus or of a group of patentably indistinct species has been required, and applicant later presents species claims to two or more independent or distinct species of the invention, the examiner may require applicant to elect a single species or of a group of patentably indistinct species.”

In other words, an examiner may require an election of species when:

• The application initially contained only generic claims
• No previous election of species was required
• The applicant later introduces claims to two or more independent or distinct species of the invention

This requirement helps focus the examination on a specific aspect of the invention while maintaining the broader protection offered by the generic claims.

To learn more:

• election of species
• patent examination
• generic claims
• species claims