810 Action on the Merits [R-07.2015]

In general, in an application when only a nonfinal written requirement to restrict is made, no action on the merits is given. A 2-month shortened statutory period will be set for reply when a written restriction requirement is made without an action on the merits. This period may be extended under the provisions of 37 CFR 1.136(a). The Office action making the restriction requirement final also ordinarily includes an action on the merits of the claims of the elected invention. See 37 CFR 1.143. In those applications wherein a requirement for restriction is made via telephone and applicant makes an oral election of a single invention, the written record of the restriction requirement will be accompanied by a complete action on the merits of the elected claims. See MPEP § 812.01. The restriction requirement should be made final as soon as reasonably possible. If the election is made with traverse, it is proper to make the restriction requirement final after consideration of the reasons for traversal. See MPEP § 821.01.