What happens if a linking claim is not allowable in a patent application?
If a linking claim is found to be not allowable in a patent application, it affects how the examiner proceeds with the examination. According to MPEP 809:
“If the linking claim is rejected, any claim(s) depending from the linking claim and thus not directed to the elected invention are withdrawn from further consideration… The applicant is advised that if any such claim(s) depending from or including all the limitations of the allowable linking claim(s) are presented in a continuation or divisional application, the claims of the continuation or divisional application may be subject to provisional statutory and/or nonstatutory double patenting rejections over the claims of the instant application.”
Essentially, if the linking claim is rejected, dependent claims not directed to the elected invention are withdrawn. The applicant may pursue these claims in a continuation or divisional application, but should be aware of potential double patenting issues.
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