What factors must an examiner consider before making a late restriction requirement?
When considering a late restriction requirement (i.e., after an action on the merits), an examiner must take into account specific factors. According to MPEP 811:
“Before requiring restriction of claims previously examined on the merits, the examiner must consider whether there will be a serious search and/or examination burden if restriction is not required.”
This means the examiner must evaluate:
- The potential for a serious search burden if restriction is not made
- The potential for a serious examination burden if restriction is not made
Only if these burdens are deemed significant can the examiner justify a late restriction requirement.
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