What is a restriction requirement?
A restriction requirement is issued by the United States Patent and Trademark Office (USPTO) when it determines that a patent application claims multiple independent and distinct inventions (e.g., combination and subcombination inventions) which are able to support separate patents. Further, the statutory basis for restriction requirements is 35 USC 121.
If a restriction is received, the Applicant is required to choose (“elect”) which invention they want examined. This response is usually required within a shortened period for response of one month; however, a limited number of extensions of time may be purchased (with each additional month requiring a greater fee).
Although an Applicant may traverse the restriction, it must be noted that an election must still be made even with a traversal, else the response will be considered non-responsive. Further, traversing a restriction should be carefully considered as such an action will likely be unsuccessful as Examiners rarely change their position. Additionally, it must be stressed that traversing the restriction may in some instances actually damage the patent application.
If the Applicant wants to pursue patent protection for the non-elected inventions, the Applicant may file the other invention(s) in a divisional application. As always, an Applicant should speak with a registered patent attorney regarding the foregoing.