When does an election become fixed in a patent application?
An election becomes fixed in a patent application when the claims have received an action on their merits by the USPTO. The MPEP § 818 clearly states:
“Election becomes fixed when the claims in an application have received an action on their merits by the Office.”
This means that once the examiner has examined the elected invention and provided a substantive office action addressing the merits of the claims, the applicant’s election is considered final. At this point, introducing new inventions or shifting to non-elected inventions becomes more difficult and may require filing a divisional application.
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