Can an applicant challenge a restriction requirement?

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.

Yes, an applicant can challenge a restriction requirement made by a patent examiner. The MPEP § 821 provides guidance on this process:

“Applicant may traverse the requirement pursuant to 37 CFR 1.143. If a final requirement for restriction is made by the examiner, applicant may file a petition under 37 CFR 1.144 for review of the restriction requirement if the applicant made a timely traversal.”

This means that applicants have two opportunities to challenge a restriction requirement:

• They can traverse (argue against) the requirement when it is first made.
• If the requirement becomes final, they can file a petition for review, provided they made a timely traversal earlier in the process.

It’s important to note that the ability to file a petition is contingent on having made a timely traversal, emphasizing the importance of promptly responding to restriction requirements.