811 Time for Making Requirement [R-07.2015]
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 requiring restriction of claims previously examined on the merits, the examiner must consider whether there will be a serious burden if restriction is not required.
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 OG 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Where a requirement to restrict is made and thereafter withdrawn as improper, if restriction becomes proper at a later stage in the prosecution, restriction may again be required.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.