MPEP 818
Election and Reply

Ninth Edition of the MPEP, Revision 07.2022, Last Revised in February 2023

Previous: §817 | Next: §818.01

818    Election and Reply [R-07.2022]

Election is the designation by applicant of the one of two or more inventions or patentably distinct species, or of the group of patentably indistinct species, that will be prosecuted in the application. See MPEP § 803.02.

When two or more independent and distinct inventions are presented for examination, the examiner may make a restriction requirement if a serious search and/or examination burden exists. In the reply to the restriction requirement, applicant must elect one invention for examination. If applicant wishes to traverse the restriction requirement, the reply must also include a traversal with specific reasons why applicant believes the restriction requirement is in error. See 37 CFR 1.111 and MPEP § 818.01. Applicant must make their own election; the examiner will not make the election for the applicant.

Election becomes fixed when the claims in an application have received an action on their merits by the Office. If, after receiving an action on the merits of an invention, one or more properly divisible additional inventions are subsequently presented for examination, the examiner may deem the examined invention to be the invention elected by original presentation. See MPEP § 818.02(a).