What happens to non-elected claims in a divisional application?
When non-elected claims are pursued in a divisional application:
- The non-elected claims from the parent application can be included in the divisional application.
- These claims are subject to restriction or election of species requirements in the divisional application.
- The examiner should not automatically object to or reject claims in a divisional application that are drawn to an invention other than the one elected in the parent application.
As stated in MPEP 821: “If, after an office action on an application, the applicant presents claims directed to an invention distinct from and independent of the invention previously claimed, the applicant will be required to restrict the claims to the invention previously claimed if the amendment is entered, subject to reconsideration and review as provided in §§ 143 and 144.”
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