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811    Time for Making Requirement [R-08.2012]

37 CFR 1.142(a), second sentence, indicates that a restriction requirement “will normally be made before any action upon the merits; however, it may be made at any time before final action .” This means the examiner should make a proper requirement as early as possible in the prosecution, in the first action if possible, otherwise, as soon as the need for a proper requirement develops.

Before making a restriction requirement after the first action on the merits, the examiner will consider whether there will be a serious burden if restriction is not required.

811.01   [Reserved]

811.02   New Requirement After Compliance With Preceding Requirement [R-08.2012]

Since 37 CFR 1.142(a) provides that restriction is proper at any stage of prosecution up to final action, a second requirement may be made when it becomes proper, even though there was a prior requirement with which applicant complied. Ex parte Benke, 1904 C.D. 63, 108 O.G. 1588 (Comm’r Pat. 1904).

811.03   Repeating After Withdrawal Proper [R-08.2012]

Where a requirement to restrict is made and thereafter withdrawn as improper, if restriction becomes proper at a later stage in the prosecution, restriction may again be required.

811.04   Proper Even Though Grouped Together in Parent Application [R-08.2012]

Even though inventions are grouped together in a requirement in a parent application, restriction or election among the inventions may be required in the divisional applications, if proper.

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Last Modified: 03/27/2014 10:10:36