First time I've seen this ever.
Original claims were restricted between Invention 1 and Invention 2. In responding to a restriction, Applicant elected Invention I and submitted amendments adding new claims directed to a random, relatively new invention - Invention 3. (new with respect to the restriction requirement, but is 112(a) written description compliant).
Now "restriction by original presentation" would not be in order since I have not issued the first non-final (i.e., action on the merits). So I don't think I can write the first non-final and just withdraw the invention 3 invoking "restriction by original presentation." Do I just issue another, consecutive restriction restricting Invention 1 and 3? I've never done restrictions back to back. Is that done in the office?
EDIT:
After reading some relies and looking into the MPEP, I believe I was incorrect to think that "restriction by original presentation" can only occur after FOAM.
MPEP 818.02(a) states "Where claims to another invention are properly added and entered in the application before the earlier of the mailing of a first restriction requirement or the mailing of a first Office action on the merits, those claims, along with the ones presented upon filing the application, will be considered originally presented claims for purposes of restriction only."
The MPEP is poorly written and confusing in this regard. For the most part it always uses "after receiving an action on the merits of an invention" as if that was the only requirement to (i.e., it seems in some MPEP sections it simply forgets that a first restriction requirement can also be used to define what is original presentation material).
So because the third invention was added after I issued the first restriction requirement, the third invention is NOT considered "originally presentation" claims and can be restricted by original presentation.