What are the criteria for establishing distinctness between a process and an apparatus for its practice?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The criteria for establishing distinctness between a process and an apparatus for its practice are outlined in MPEP 806.05(e):

• The apparatus as claimed can be used to practice another and materially different process; or
• The process as claimed can be practiced by another and materially different apparatus or by hand.

The examiner must provide reasons and/or examples to support the conclusion of distinctness. It’s important to note that the burden is on the examiner to provide examples, but the examples need not be documented.