What is the significance of an incomplete reply in a restriction requirement response?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

An incomplete reply to a restriction requirement can have significant consequences. According to MPEP 821.02, an incomplete reply may be treated as an election without traverse:

Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse ( MPEP § 818.01(a) ).

This means that if an applicant fails to properly argue against the restriction requirement in their reply, the examiner will consider it as an acceptance of the requirement without challenge. This interpretation can limit the applicant’s ability to later petition against the restriction requirement and may result in the withdrawal of non-elected claims from consideration.