Can an applicant traverse a species election requirement?
Yes, an applicant can traverse (i.e., dispute or argue against) a species election requirement issued by the USPTO examiner. The MPEP 808.01(a) provides guidance on this process:
“If applicant traverses on the ground that the species, or groupings of patentably indistinct species from which election is required, are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing them to be obvious variants or clearly admit on the record that this is the case.”
To traverse a species election requirement, an applicant should:
- Provide a timely response to the Office Action containing the requirement
- Clearly state that the requirement is traversed
- Present arguments explaining why the species are not patentably distinct
- Provide evidence or identify existing evidence showing the species are obvious variants
- Optionally, make an election with traverse, selecting a species for examination while maintaining the right to petition
If the examiner maintains the requirement after considering the traversal, the applicant may petition the Director under 37 CFR 1.144 for review of the restriction requirement.
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