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.