Is an election required when traversing a restriction requirement?
Yes, an election is required even when traversing a restriction requirement. According to MPEP 818.01(b):
“As noted in the second sentence of 37 CFR 1.143, a provisional election must be made even if the requirement is traversed.”
This means that when responding to a restriction requirement, an applicant must:
- Make an election of one invention for prosecution
- Optionally provide reasons for traversing the requirement
It’s important to note that the election becomes final if the restriction requirement is made final. The examiner will not make the election for the applicant; it is the applicant’s responsibility to make their own election.
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