How does the examiner support a conclusion of distinctness in process and apparatus claims?

According to MPEP 806.05(e), the examiner must support a conclusion of distinctness between process and apparatus claims as follows:

1. Provide reasons: The examiner must explain why the apparatus as claimed can be used to practice another materially different process, or why the process as claimed can be practiced by another materially different apparatus or by hand.
2. Give examples: The examiner should provide specific examples to illustrate the distinctness. For instance, “The apparatus as claimed can be used to practice another and materially different process such as A” or “The process as claimed can be practiced by another and materially different apparatus such as B.”
3. No documentation required: The MPEP states, “The examiner must provide reasons and/or examples to support the conclusion, but the examples need not be documented.”

It’s important to note that the burden is on the examiner to provide this support for the restriction requirement.

To learn more:

• examiner support
• distinctness
• process claims
• apparatus claims
• restriction requirement