How does election by originally presented claims work in patent applications?

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.

Election by originally presented claims is explained in MPEP 818.02(a). The key points are:

• Claims added before the first restriction requirement or first Office action on the merits are considered originally presented claims.
• These originally presented claims, along with those filed at application, determine the elected invention.
• This election carries over to any request for continued examination (RCE).

The MPEP states: “The claims originally presented and acted upon by the Office on their merits determine the invention elected by an applicant in the application, and in any request for continued examination (RCE) filed for the application.” This means that the initial set of claims establishes the elected invention, even without an explicit election statement from the applicant.