What happens if an applicant cancels claims without an express election statement?
When an applicant cancels claims without making an express election statement, MPEP 818.02(d) provides guidance:
- If the applicant’s reply to a restriction requirement doesn’t expressly state the elected invention,
- But cancels claims to all but one of the inventions,
- The remaining invention is deemed to be the elected invention.
The MPEP states: “If applicant’s reply to a requirement for restriction does not expressly state the invention elected, but cancels claims to all but one of the inventions, the remaining invention will be deemed to be the elected invention.” This means that the act of canceling claims can serve as an implicit election, even without an explicit statement from the applicant.
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