What happens if an applicant fails to elect a species in response to a 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.

If an applicant fails to elect a species in response to a requirement, the examiner may take specific actions as outlined in MPEP 809.02:

“If no allowable generic claim is finally held to be allowable, the practice following election by applicant should be followed. If applicant does not make an election of species, the examiner will be authorized to issue an Office action on the merits employing the reference most pertinent to the first claimed species.”

The consequences of failing to elect a species may include:

• The examiner may proceed with examination based on the first claimed species.
• The application may be considered non-responsive, potentially leading to abandonment if not addressed.
• The applicant may lose the opportunity to have their preferred species examined first.
• Delays in the examination process may occur.

To avoid these issues, applicants should promptly respond to species election requirements with a clear election and identification of claims encompassing the elected species.