How does MPEP 806.05 address the burden of proof in restriction requirements?
How does MPEP 806.05 address the burden of proof in restriction requirements?
MPEP 806.05 places the burden of proof on the examiner when making a restriction requirement for related inventions. Specifically, the MPEP states:
“The examiner must show by way of example or demonstration that the inventions are distinct, but the examiner may not rely on conclusory statements without evidence.”
This means that the examiner must:
- Provide specific examples or demonstrations of how the inventions are distinct.
- Avoid using conclusory statements without supporting evidence.
- Clearly explain why the inventions are not obvious variants of each other based on the current record.
If an applicant traverses a restriction requirement, the examiner must reconsider the requirement and either maintain it with a detailed response or withdraw it if found to be improper. This approach ensures that restriction requirements are well-founded and not arbitrarily imposed.
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