excess-claim fees -- for claims withdrawn from consideration

[PeterPatnter]

Are claims that are "withdrawn from consideration" included in the claim count, for purposes of calculating excess-claim fees?

Where should a frustrated patent lawyer (registered for 48 years!) look to find the answer?   

[PeterPatnter]

Yes, I know this question is trivial, and therefore surely silly.  Only just go try and find the answer!

[IPTaraus]

Yes, they do count. Only the canceled ones do not count. I got this answer from the USPTO.

[bleedingpen]

After a requirement for restriction, nonelected claims will be included in determining the fees due in connection with a subsequent amendment unless such claims are canceled.

http://www.uspto.gov/web/offices/pac/mpep/documents/0600_607.htm

[THEROUEN]

For those looking to quote the MPEP, a call with the USPTO confirmed this is as close as we can get:  MPEP 714.10 (updated Jan 2018), in part:

"...When applicant adds a new excess claim that is in excess of the number of claims that were previously paid for after taking into account claims that have been canceled*, applicant must pay the required excess claims fees before the examiner considers the new claim.."

*Per USPTO AAU agent, by indicating CANCELLED claims only, we can safely draw the conclusion that withdrawn claims count toward total claims.

[bluerogue]

Yes withdrawn claims count toward excess claim fees.  One reason for this is that withdrawn claims in response to a restriction could be rejoined at a later time and thus, the claims are still technically pending.  Similarly, an application cannot be allowed with allowed claims and withdrawn claims pending.  The withdrawn claims would need to be cancelled.