Can linking claims be used to connect inventions in different statutory categories?
Linking claims typically connect inventions within the same statutory category, but there are exceptions. The Manual of Patent Examining Procedure (MPEP) 809 provides guidance on this matter:
“Linking claims and the inventions they link together are usually either all directed to products or all directed to processes (i.e., a product claim linking properly divisible product inventions, or a process claim linking properly divisible process inventions). The most common types of linking claims are genus claims linking species claims (e.g., to a common genus) and subcombination claims linking plural combinations.”
However, the MPEP also notes that there can be situations where linking claims connect inventions in different statutory categories:
“Occasionally, however, a linking claim may be a process claim linking product claims, or a product claim linking process claims.”
While less common, these cross-category linking claims are possible and must be evaluated on a case-by-case basis to ensure they meet the criteria for linking claims and proper restriction practice.
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