When can an examiner cancel non-elected claims in a patent application?

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.

An examiner can cancel non-elected claims in a patent application under specific circumstances, as outlined in MPEP 821.02:

When applicant has not retained the right to petition the restriction requirement and the application is otherwise ready for allowance, the claims to the nonelected invention, except for claims directed to nonelected species and nonelected inventions eligible for rejoinder, may be canceled by an examiner’s amendment, and the application passed to issue.

The examiner uses form paragraph 8.07 for this purpose, which states:

This application is in condition for allowance except for the presence of claim [1] directed to [2] nonelected without traverse. Accordingly, claim [3] been canceled.

It’s important to note that claims eligible for rejoinder should not be canceled, even if they were non-elected without traverse.