How does the examiner determine if species are patentably distinct?

Examiners determine if species are patentably distinct by evaluating their unique characteristics and search burden. The MPEP 809.02(a) states:

“In making a requirement for restriction in an application claiming plural species, the examiner should group together species considered clearly unpatentable over each other.”

Examiners assess whether:

  • The species have mutually exclusive characteristics
  • The species are not obvious variants of each other
  • Searching for one species does not likely result in finding art pertinent to the other species

If these criteria are met, the species are considered patentably distinct, warranting a restriction requirement.

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Tags: examiner determination, mpep 809.02, patentably distinct species