How is the elected invention determined in a patent application?
The elected invention in a patent application is determined by the claims that were originally presented and acted upon by the USPTO on their merits. MPEP 818.02(a) 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 invention considered to be elected is based on the claims that were initially examined by the USPTO, not necessarily the claims that were filed last or most recently amended.
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