What are the criteria for a “materially different” process or use in patent restrictions?
The criteria for a “materially different” process or use in patent restrictions are not explicitly defined in the MPEP. However, based on MPEP 806.05(i), we can infer that a process or use is considered materially different if it significantly changes the nature of the invention or its application. Key points to consider:
- The difference should be substantial, not merely superficial or trivial.
- It should involve a different mode of operation or produce a different result.
- The alternative process or use should be practical and not merely hypothetical.
The MPEP states: “Where the claimed process can be used to make other and materially different products, there is evidence that the product as claimed can be made by another materially different process.” This suggests that the examiner must show a realistic alternative that produces a distinct outcome or involves significantly different steps.
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