Exact repeat of an old 02, or 03 question. Where he files, gets restriction and elects in parent, has elected claims twice and finally rejected, then files a continuation claiming benefit but RE-adding the previously restricted claims. Examiner files ANOTHER restriction requirement, but no action on the merits yet. Most of the answers say “appeal the restriction requirement” (WRONG only petiiton). The right answer says something like, “no appeal can be made because no claims are under rejection in the continuing application and the restriction requirement is petitionable ONLY.”

The answer E is the important one. It says the claims are not “under rejection” (I don’t understand, but whatever) but gives the MOST important fact, that the rejection is to be PETITIONED not appealed.

MPEP 804.01(E) – Even though this section is about double patenting there is a comment in paragraph E that states ” note that a restriction requirement in an earlier-filed application does not carry over to claims of a continuation application in which the examiner does not reinstate or refer to the restriction requirement in the parent application.”

In this case, the parent application had one restriction, and the continuation also got one. Are they cumulative? Can the practitioner elect/ and petition? I guess the problem is whether the restriction was traversed in the parent…..

Further, the examiner cannot reject any claims until one of the “inventions” is elected. Thus, if you have not elected, no claims are under rejection and you would have no rejection(s) to appeal.