What is the distinction between a product and a process of using the product in patent law?

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.

In patent law, a product and a process of using the product can be considered distinct inventions under certain conditions. According to MPEP 806.05(h), these inventions can be shown to be distinct if either:

• (A) the process of using as claimed can be practiced with another materially different product; or
• (B) the product as claimed can be used in a materially different process.

The MPEP states:

“A product and a process of using the product can be shown to be distinct inventions if either or both of the following can be shown: (A) the process of using as claimed can be practiced with another materially different product; or (B) the product as claimed can be used in a materially different process.”

This distinction is important for patent examiners when determining whether to issue a restriction requirement between product and process claims.