818.01 Election in Reply to a Restriction Requirement: Express [R-07.2022]
37 CFR 1.143 Reconsideration of requirement.
If the applicant disagrees with the requirement for restriction, he may request reconsideration and withdrawal or modification of the requirement, giving the reasons therefor. (See § 1.111). In requesting reconsideration the applicant must indicate a provisional election of one invention for prosecution, which invention shall be the one elected in the event the requirement becomes final. The requirement for restriction will be reconsidered on such a request. If the requirement is repeated and made final, the examiner will at the same time act on the claims to the invention elected.
Election in reply to a requirement for restriction may be made either with or without an accompanying traverse of the requirement. A complete reply to a restriction requirement must include an election even if applicant traverses the requirement.
A traverse is a request for reconsideration of a requirement to restrict that must include a written statement of the reasons for traverse, distinctly and specifically pointing out the supposed errors upon which the applicant relies for concluding that the requirement is in error. The absence of any statement indicating whether the requirement to restrict is traversed or the failure to provide reasons for traverse will be treated as an election without traverse.
Where a rejection or objection is included with a restriction requirement, applicant, besides making a proper election, must also distinctly and specifically point out any supposed errors in the examiner’s rejection or objection, or amend and argue that as amended the objection or rejection is moot. See 37 CFR 1.111.
Applicant must make their own election; the examiner will not make the election for the applicant. See 37 CFR 1.142 and 37 CFR 1.143.