What factors must an examiner consider before making a late restriction requirement?

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 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.