If a divisional application is not filed after a restriction requirement, what happens to the claims?

When a restriction requirement is issued during the examination of a patent application, it necessitates that the applicant select which claims will be further examined in the current application. If the applicant does not file a divisional application to pursue the non-chosen claims, those claims are effectively abandoned concerning the original application. Under the rule of recapture, an applicant cannot reintroduce those claims in a future application that is based on the same original disclosure if they are deemed to have been abandoned. This rule is in place to prevent the applicant from "recapturing" claims that were not pursued after a restriction requirement, thereby ensuring that the applicant cannot simply re-file claims that were deliberately not pursued.

This concept maintains the integrity of the patent system by preventing the exploitation of the application's prosecution history and ensuring that all claims are considered in a timely fashion during the examination period. Thus, the claims that were not pursued due to the restriction requirement cannot be included in a future application, making it critical for applicants to carefully consider their strategies when responding to restriction requirements.