Is the Applicant still allowed to pursue claims that have been withdrawn as a result of a restriction?
Yes, but the claims withdrawn in the restricted application need to be pursued in one or more separate patent applications. This is true even if all claims in the restricted application ultimately wind up being rejected -- the applicant will not be allowed, after making his election and failing to persuade the Examiner that any claims were allowable, to then "switch back" (reinstate withdrawn claims directed to an unelected invention) and then try to prosecute these other claims. One or more separate applications will be required.
Restriction is the practice of requiring a patent applicant to elect a single invention for examination when an application discloses and claims multiple inventions. Essentially, it is the U.S. Patent Examiner's way of saying, "You've got multiple inventions here, but you've only paid us to examine one single invention. Choose the claims of the one invention you want us to examine now, and withdraw all claims directed to all other inventions."
What other differences should be evaluated when deciding to file a U.S. national phase application versus a bypass application?
-A U.S. national phase application will be examined under the international "unity of invention" standard, while a bypass application will be examined under U.S. restriction practice.
-When filing a national phase application (subject to certain limitations), you would not ordinarily need to submit a new IDS for references cited in the International Search Report and corresponding Written Opinion, whereas you would if you instead filed a bypass application.
-When filing a national phase application (subject to certain limitations), you would not ordinarily need to submit a copies of foreign priority documents (you will likely need to submit verified translations however). You will need to submit such copies if you instead filed a bypass application.
-Unlike a national phase application, you will not need to submit the filing fees of a bypass application the same day it is filed.
Yes, in some circumstances, a PCT application can be considered prior art against any claims supported only by the content of the subsequently filed bypass continuation-in-part application. PCT applications are normally published 18 months after the earliest priority date of the PCT application. The danger stems from attempting to file a bypass continuation-in-part application more than 12 months after publication of the PCT application.
Jean McCarthy of Quinn IP Law describes this situation in more detail. The link is provided below:
A "bypass application" is a U.S. non-provisional application which claims priority to a PCT application, but which is not a U.S. national phase (i.e. a 371) application. You might want to file a bypass application, as opposed to a U.S. national phase application, if you ultimately decided that it would be smarter to pursue different claims then the ones appearing in the PCT application (which is known as a bypass continuation application), or if you want to amend the specification to include new matter that is not contained within the PCT application (which is known as a bypass continuation-in-part application).
Title IV is a collection of disjoint loose ends. It contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.
Title III of the Digital Millenium Copyright Act (DMCA) is known as the "Computer Maintenance Competition Assurance Act." This Act creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.
(Technically speaking, any time software is loaded into RAM, a "copy" has been made. Thus, without this provision, computer maintenance and repair technicians could routinely be subject to copyright liability).
Title I implements two World Intellection Property Organization (WIPO) treaties: The Wipo Copyright Treaty and the WIPO Performances and Phonograms Treaty adopted at the WIPO Diplomatic Conference in December 1996. The treaties have two major portions. One portion includes works covered by several treaties in U.S. copy prevention laws and gave the title its name. The second portion (17 U.S.C. 1201) is often known as the DMCA anti-circumvention provisions. These provisions changed the remedies for the circumvention of copy-prevention systems (also called "technical protection measures") and required that all analog video recorders have support for a specific form of copy prevention. The section contains a number of specific limitations and exemptions, for such things as government research and reverse engineering in specified situations.
Copyrights, trademarks, trade secrets, and patents are all forms intellectual property. Whenever you analyze "property" -- be it real property, personal property (also known as personalty, or chattels), or intellectual property, it is best to conceive the property as a bundle of separate rights.
So what rights are in the bundle of a copyright?
17 U.S.C. 106 describes them. Generally speaking, a copyright includes a. the right to copy/reproduce the copyrighted work; b. the right to prepare derivative works; c. the right to distribute copies of the copyrighted work; d. the right to perform the copyrighted work publicly; and e. the right to display the copyrighted work publicly.
The Digital Millenium Copyight Act of 1998, or DMCA, was intended to update copyright law as applied to digital media. The DMCA is divided into five titles, and not everything in the DMCA is strictly related to digital media. For example, Title V of the DMCA is known as the "Vessel Hull Protection Act" which has to do with according legal protection to the design of vessel hulls.
Perhaps the most important provisions in the DMCA are found within Title II, which deals with limiting the legal liability of online service providers. Many online service providers (OSPs) allow users to upload content to the OSP servers to enable photo or video sharing, file transfers, or myriad other reasons. Strictly speaking, before the DMCA, OSPs could be liable for enabling the distribution/download of copyrighted material which was housed on their servers. Obviously, with millions of users on some of the more active social media platforms, it remains unreasonable for the OSP to have to monitor all content posted by all users at all times, or otherwise risk getting sued. Under these conditions, OSP's may decide to close up shop altogether.
Thus, a number of "safe harbor" provisions found within the DMCA exempt the OSP from such copyright claims.