MPEP § 811 — MPEP § 811
Current through: 2022-07-01

811-Time for Making Requirement 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 0800 

 Section 811 
 

 
 
 
 
 
 811 Time for Making Requirement [R-07.2022]

 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 search and/or examination burden
 if restriction is not required.
 

 
 811.01 [Reserved]

 

 

 
 811.02 New Requirement After Compliance With Preceding
 Requirement [R-08.2012]
 

 Since 37 CFR 1.142(a) provides that
 restriction is proper at any stage of prosecution up to final action, a second
 requirement may be made when it becomes proper, even though there was a prior
 requirement with which applicant complied. Ex parte Benke, 1904 C.D.
 63, 108 OG 1588 (Comm’r Pat. 1904).
 

 

 
 811.03 Repeating After Withdrawal Proper [R-08.2012]

 Where a requirement to restrict is made and thereafter withdrawn as
 improper, if restriction becomes proper at a later stage in the prosecution, restriction
 may again be required.
 

 

 
 811.04 Proper Even Though Grouped Together in Parent
 Application [R-08.2012]
 

 Even though inventions are grouped together in a requirement in a
 parent application, restriction or election among the inventions may be required in the
 divisional applications, if proper.
 

 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 801-Introduction 

 802-Basis for Restriction Practice in Statute and Rules 
 802.01-Meaning of “Independent” and “Distinct” 

 802.02-Definition of Restriction 

 
 

 803-Restriction — When Proper 
 803.01-Review by Examiner with at Least Partial Signatory Authority 

 803.02-Election of Species Requirements – Markush Claims 

 803.03-Transitional Applications 
 803.03(a)-Transitional Application — Linking Claim Allowable 

 803.03(b)-Transitional Application — Generic Claim Allowable 

 
 

 803.04-Nucleotide Sequences 

 803.05-Reissue Application Practice 

 
 

 804-Definition of Double Patenting 
 804.01-Prohibition of Nonstatutory Double Patenting Rejections Under 35 U.S.C. 121 

 804.02-Avoiding a Double Patenting Rejection 

 804.03-Commonly Owned Inventions of Different Inventive Entities; Non-Commonly Owned Inventions Subject to a Joint Research Agreement 

 804.04-Submission to Technology Center Director 

 804.05-Impact of Patent Term Extension under 35 U.S.C. 156 on Nonstatutory Double Patenting 

 
 

 805-Effect of Improper Joinder in Patent 

 806-Determination of Distinctness or Independence of Claimed Inventions 
 806.01-Compare Claimed Subject Matter 

 806.02-[Reserved] 

 806.03-Single Embodiment, Claims Defining Same Essential Features 

 806.04-Genus and/or Species Inventions 
 806.04(a)-[Reserved] 

 806.04(b)-Species May Be Independent or Related Inventions 

 806.04(c)-[Reserved] 

 806.04(d)-Definition of a Generic Claim 

 806.04(e)-Claims Limited to Species 

 806.04(f)-Restriction Between Mutually Exclusive Species 

 806.04(g)-[Reserved] 

 806.04(h)-Species Must Be Patentably Distinct From Each Other 

 806.04(i)-Generic Claims Presented In a Separate Application After Issuance of Species Claims 

 
 

 806.05-Related Inventions 
 806.05(a)-Combination and Subcombination 

 806.05(b)-[Reserved] 

 806.05(c)-Criteria of Distinctness Between Combination and Subcombination 

 806.05(d)-Subcombinations Usable Together 

 806.05(e)-Process and Apparatus for Its Practice 

 806.05(f)-Process of Making and Product Made 

 806.05(g)-Apparatus and Product Made 

 806.05(h)-Product and Process of Using 

 806.05(i)-Product, Process of Making, and Process of Using 

 806.05(j)-Related Products; Related Processes 

 
 

 806.06-Independent Inventions 

 
 

 807-Patentability Report Practice Has No Effect on Restriction Practice 

 808-Reasons for Insisting Upon Restriction 
 808.01-Reasons for Holding of Independence or Distinctness 
 808.01(a)-Species 

 
 

 808.02-Establishing Burden 

 
 

 809-Linking Claims 
 809.01-[Reserved] 

 809.02-Election of Species Required 
 809.02(a)-Election of Species Required 

 
 

 809.03-Restriction Between Linked Inventions 

 
 

 810-Action on the Merits 

 811-Time for Making Requirement 
 811.01-[Reserved] 

 811.02-New Requirement After Compliance With Preceding Requirement 

 811.03-Repeating After Withdrawal Proper 

 811.04-Proper Even Though Grouped Together in Parent Application 

 
 

 812-Who Should Make the Requirement 
 812.01-Telephone Restriction Practice 

 
 

 813-[Reserved] 

 814-Indicate Exactly How Application Is To Be Restricted 

 815-Make Requirement Complete 

 816-[Reserved] 

 817-Outline of Letter for Restriction Requirement 

 818-Election and Reply 
 818.01-Election in Reply to a Restriction Requirement: Express 
 818.01(a)-Reply Must be Complete 

 818.01(b)-Election is Required, Even When Requirement Is Traversed 

 818.01(c)-Traverse is Required To Preserve Right of Petition 

 818.01(d)-Traverse of Restriction Requirement With Linking Claims 

 
 

 818.02-Election Other Than Express 
 818.02(a)-Election By Originally Presented Claims 

 818.02(b)-Generic Claims Only — No Election of Species; Linking Claims Only – No Election of Invention 

 818.02(c)-Election By Optional Cancelation of Claims 

 818.02(d)-Election By Cancelation of Claims, Lacking Express Election Statement 

 
 

 
 

 819-Office Generally Does Not Permit Shift 

 820-[Reserved] 

 821-Treatment of Claims Held To Be Drawn to Nonelected Inventions 
 821.01-After Election With Traverse 

 821.02-After Election Without Traverse 

 821.03-Claims for Different Invention Added After an Office Action 

 821.04-Rejoinder 
 821.04(a)-Rejoinder Between Product Inventions; Rejoinder Between Process Inventions 

 821.04(b)-Rejoinder of Process Requiring an Allowable Product 

 
 

 
 

 822-Claims to Inventions That Are Not Patentably Distinct in Plural Applications of Same Applicant or Assignee 

 823-Unity of Invention Under the Patent Cooperation Treaty 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:49:44