Saw this post on intelproplaw.com and was curious if anyone on here had any additional insight.
Hypo: applicant prosecutes a claim set to allowance following a restriction requirement. Non-elected claims remain in the listing, with the "withdrawn" status notifier, up until allowability is favorably indicated, at which point the applicant authorizes examiner-amendment cancellation of the withdrawn claims. Only elected claims were ever examined, prosecuted, and allowed.
The notice of allowance contains a notification that the restriction requirement "is moot and therefore is canceled." As such, "the provisions of 35 U.S.C. 121 are no longer applicable." In other words, the examiner believes he can inflict a double patenting rejection on a divisional directed to the restricted, non-elected, withdrawn, and ultimately canceled subject matter.
Can the examiner do that?