What is a proper traversal of an election of species requirement?
A proper traversal of an election of species requirement involves the applicant challenging the examiner’s assertion that the species are independent or distinct. According to MPEP 809.02:
“If applicant traverses on the ground that the species, or groupings of patentably indistinct species from which election is required, are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing them to be obvious variants or clearly admit on the record that this is the case.”
To properly traverse an election of species requirement, an applicant should:
- Provide evidence: Submit or identify existing evidence showing the species are obvious variants.
- Challenge the distinction: Argue why the species are not patentably distinct.
- Address search burden: Explain why there would not be a serious search burden if restriction were not required.
- Request examination of additional species: If applicable, request examination of additional species that are not patentably distinct from the elected species.
A successful traversal may result in the withdrawal of the election requirement or the examination of additional species. However, if the traversal is not persuasive, the election requirement will be maintained, and the applicant must elect a species for examination.
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