How can an applicant overcome a restriction requirement between a product and its process of making or using?

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.

An applicant can overcome a restriction requirement between a product and its process of making or using in several ways:

1. Traverse the requirement: Argue that the restriction is improper by showing that the product cannot be made by a materially different process or used in a materially different way.
2. Amend the claims: Modify the claims to show that the product and process are not distinct or that they have a special technical relationship.
3. File a divisional application: Pursue the restricted claims in a separate application while maintaining the right to rejoin them later.
4. Request rejoinder: If the product claims are found allowable, request that the process claims be rejoined and examined for patentability.

According to MPEP 806.05(i):

“The examiner must show “distinct inventions” to support a restriction requirement.”

If the applicant can demonstrate that the inventions are not distinct or that examining them together would not be a serious burden, they may be able to overcome the restriction.