How does the USPTO handle restriction requirements in otherwise allowable 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.
When an application is otherwise allowable but contains a traverse of a restriction requirement, the USPTO follows a specific procedure as outlined in MPEP 710.02(c):
“Where an application is otherwise allowable but contains a traverse of a restriction requirement, the applicant may be given a specified time (e.g., a 2-month time limit) to cancel claims to the nonelected invention or species or take other appropriate action (i.e., petition the restriction requirement under 37 CFR 1.144).”
Key points:
- The examiner typically sets a 2-month deadline for action.
- Failure to file a petition or cancel nonelected claims doesn’t result in abandonment.
- If no action is taken, it’s treated as authorization to cancel nonelected claims.
- The application will then proceed to issuance.
For more details on restriction requirements, refer to MPEP §§ 821.01 and 821.04(a).