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.
811.02 New Requirement After Compliance With Preceding Requirement
MPEP SECTION SUMMARY
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.
811.03 Repeating After Withdrawal Proper
MPEP SECTION SUMMARY
Where a requirement to restrict is made and thereafter withdrawn as improper, if restriction becomes proper at a later stage in the prosecution, restriction may again be required.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
MPEP SECTION SUMMARY
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.
