818.01(d) Traverse of Restriction Requirement With Linking Claims [R-07.2015]
Regardless of the presence of a linking claim, a proper traverse must include a written statement of the reasons for traverse, distinctly and specifically pointing out the supposed errors upon which the applicant relies for his or her conclusion that the requirement is in error. If restriction is made final following consideration of a traverse, the right to petition is preserved even if all linking claims are canceled. When a final restriction requirement is contingent on the nonallowability of the linking claims, applicant may petition from the requirement under 37 CFR 1.144 without waiting for a final action on the merits of the linking claims or applicant may defer his or her petition until the linking claims have been finally rejected, but not later than the notice of appeal. See 37 CFR 1.144 and MPEP § 818.01(c).
An election combined with an argument that the linking claim is allowable is not a traversal of the restriction requirement. The Office considers such a response to be a concession that restriction is proper if the linking claim is not allowable. If the linking claim is allowable, the restriction is improper and should be withdrawn. If the Office allows the linking claim, the restriction requirement must be withdrawn and claims to all linked inventions that depend from or otherwise include all the limitations of the allowable linking claim must be acted upon.