Thanks Klav. I appreciate your (and the others) input...
I agree with what you are saying in almost all situations... After rereviewin again this morning, I think that the situation I have may be an exception. The current situation in my case is that the method claim includes all of the apparatus claim limitations.
Under 8.21.02, Election without Traverse, the MPEP (Rev 5, Aug 2006) at Pg 800-64 provides:
"Under these circumstances, when the application is otherwise ready for *>allowance<, the claims to the nonelected invention, *>except for claims directed to< nonelected species >and nonelected inventions eligible for rejoinder<, may be canceled by an examiner’s amendment, and the application passed to issue"
It seems that in my case, the MPEP indicates that my case is one where "non-elected inventions (are) elegible for rejoinder". The MPEP, at 806.05(h), referring to 821.04, and 821.04(a), where 8.21.04(a) states
" Where restriction was required between independent or distinct products, or between independent or distinct processes, and all claims directed to an elected invention are allowable, any restriction requirement between the elected invention and any nonelected invention that depends from or otherwise requires all the limitations of an allowable claim should be withdrawn."
8.05.05(h), as well as 821.04 don't distinguish between with traverse or without traverse, and 8.21.02 seems to provide an avenue to get to 8.21.04(a). So I believe that I'm ok (in this particular situation, to seek rejoinder later, as of right) whether the restriction is traversed or not. "as of right" meaning the correct hoops of making sure the procss claims are amended continually6 when necessary to include the steps of the apparatus.
So in my limited circumstance, I believe that I'm ok NOT traversing at this stage, and still rejoining later, so long as I continue any amendments to the withdrawn/nonelected process claims to keep them commensurate in scope with the apparatus. I will stand however to being corrected.
I'm sure everyone is wondering at this stage why I just don't traverse (as it sounds like I;ve put the time in to do so)... Well, this is a case I'm handling for a client. It has been so long since I've dealt with this type of restriction requirement (that seems completly wrong to me), I needed to determine how to handle, and the advantages/disadvantages in how it is handled to properly convey the options/risks to the client. How the client wants to handle this particular situation is essentially a business decision. Should they want to handle it with a traverse, it will cost more (as it will take longer to prepare the traverse than without traverse). So, though I will eat my time for geting up to speed, I won't give away a free traverse either. And I will take the information learned to the next situation of when this occiurs.
Thanks for any input, or correction if I've missed the boat in thinking that my situation seems to fit into an allowable rejoinder later if apparatus is found allowable.