The requirement should be made by an examiner who would examine at least one of the inventions.
If, on examination, the examiner finds the claims to an invention elected without traverse to be allowable and no nonelected invention is eligible for rejoinder, the restriction requirement should be attached to the Notice of Allowability form and should include cancellation of the nonelected claims, a statement that the prosecution is closed, and that a notice of allowance will be sent in due course. Correction of formal matters in the above-noted situation which cannot be handled by a telephone call and thus requires action by the applicant should be handled under the Ex parte Quayle practice.
812.01 Telephone Restriction Practice
MPEP SECTION SUMMARY
If an examiner determines that a requirement for restriction should be made in an application, the examiner should formulate a draft of such restriction requirement including an indication of those claims considered to be linking and/or generic. Thereupon, the examiner should telephone the attorney or agent of record and request an oral election, with or without traverse.
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