How does the USPTO handle species claims when a generic claim is allowed?

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 a generic claim is allowed, the USPTO has specific guidelines for handling species claims. According to MPEP 806.04:

“If a generic claim is allowed, the examiner must determine whether the claims to the nonelected species would be allowable if presented in a separate application.”

This means that even if a species claim was not initially examined, it may still be considered for allowance if it depends from or otherwise requires all the limitations of an allowed generic claim. The examiner must evaluate each species claim individually to determine its patentability.