Electionof Species

[manky]

Please answer the following question regarding Election of Species. 

FIG. 1 depicts a device including an element A and an element B. 
FIG. 2 depicts a device including an element A and an element C. 

The examiner issued a requirement for Election of Species.
Species 1: FIG. 1,  Species 2: FIG. 2

Independent claim 1 is readable on Species 1.
Independent claim 2 is readable on Species 2.
There is no generic claim. 

In response to the requirement, Species 1 was elected. 
The examiner issued 1st OA indicating that claim1 is not allowed. 

In such a case, can claim 1 be amended to include the element C in response to the 1st OA ?
Note that the specification describes the device can includes the element A, B, C. 

[Isaac]

In such a case, can claim 1 be amended to include the element C in response to the 1st OA ?
Note that the specification describes the device can includes the element A, B, C. 

You should be able to amend claim 1 to recite ABC, but the examiner may resist.   I'd suggest pointing out where your specification describes that combination in your remarks.

Device ABC would not fit into either of the species identified by the examiner.  It is possible that the examiner may take the position that you should have traversed the election of species.

[Examinerguy]

The combination of ABC may  receive an election by original presentation response. Its a case by case though and depends on what the addition of C does to AB.

[manky]

Thank you for quick reply.
I understand well. 

I have another question. 

In such a case, is it common practice to add claim 3 depending from claim 1 and reciting the element C in response to the Election of Species requirement ?