When can I file a petition against a restriction requirement?
The timing for filing a petition against a restriction requirement is specified in MPEP 818.01(c), which cites 37 CFR 1.144:
Petition may be deferred until after final action on or allowance of claims to the invention elected, but must be filed not later than appeal.
This means you have several options for when to file your petition:
- After receiving a final restriction requirement
- After final action on the elected claims
- After allowance of the elected claims
- Before filing a notice of appeal
However, it’s crucial to note that you must have properly traversed the restriction requirement initially to preserve your right to petition. The MPEP states: “A petition will not be considered if reconsideration of the requirement was not requested.” Therefore, it’s essential to file a proper traverse when responding to the initial restriction requirement, even if you plan to defer the actual petition until later in the prosecution process.
To learn more: