What happens if a nonelected species is found allowable in Markush claim examination?
If a nonelected species is found allowable during Markush claim examination, the examiner must follow specific procedures. According to MPEP 803.02:
“If on examination the elected species is found to be anticipated or rendered obvious by prior art, the Markush claim and claims to the elected species will be rejected, and claims to the nonelected species will be held withdrawn from further consideration. If the elected species is found to be allowable, the search will be expanded to consider additional nonelected species until: (A) prior art is found that anticipates or renders obvious a species, or the entire Markush group of the claim of the application.”
This means that if a nonelected species is found allowable, the examiner will continue to expand the search to other species within the Markush group until either prior art is found or all species are determined to be allowable.
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