How are non-elected claims handled after a Board decision?

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.

When handling non-elected claims after a Board decision:

1. If elected claims are in condition for allowance, non-elected claims should be considered for rejoinder.
2. If the Board reverses all rejections of a generic claim, pending claims drawn to non-elected species must be acted upon.
3. Exception: If the examiner reopens prosecution with a new ground of rejection of the generic claim and determines the election of species is still appropriate.

The MPEP states: If, upon review of the decision of the Board, the elected claims are in condition for allowance and the application contains claims directed to a non-elected invention, whether the election was made with or without traverse, the non-elected invention should be considered for rejoinder.