Can restriction be required in a reissue application?
Yes, restriction can be required in a reissue application, but with some limitations. According to MPEP 1440:
“37 CFR 1.176(b) Restriction between subject matter of the original patent claims and previously unclaimed subject matter may be required (restriction involving only subject matter of the original patent claims will not be required).”
This means that the examiner may require restriction between the original patent claims and newly added claims that were not previously claimed. However, restriction cannot be required between the original patent claims themselves. If restriction is required, the subject matter of the original patent claims is considered constructively elected unless the applicant files a disclaimer of all patent claims.
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