What are the criteria for distinctness between a process of making and product made?

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 distinctness between a process of making and product made are outlined in MPEP 806.05(f). According to the manual:

“A process of making and a product made by the process can be shown to be distinct inventions if either or both of the following can be shown: (A) that the process as claimed is not an obvious process of making the product and the process as claimed can be used to make another materially different product; or (B) that the product as claimed can be made by another materially different process.”

This means that to establish distinctness, you need to demonstrate either that the claimed process can make a different product, or that the claimed product can be made by a different process.