What happens to non-elected claims after a final restriction requirement?
After a final restriction requirement, non-elected claims are typically handled as follows:
- They are clearly indicated as being withdrawn from consideration
- The examiner uses Form Paragraph 8.05 to show the claims are withdrawn with traverse
- The applicant retains the right to petition the requirement under 37 CFR 1.144
The MPEP states: “If the requirement is made final, the claims to the nonelected invention should be clearly indicated as being withdrawn from consideration. In this situation, the examiner should use form paragraph 8.05.” (MPEP 821.01) This ensures clarity in the record and preserves the applicant’s rights.
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