What options does an applicant have when facing a restriction requirement for product, process of making, and process of using claims?

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.

When an application contains claims to a product, process of making, and process of using, the applicant may face a restriction requirement. According to MPEP 806.05(i):

“Where an application contains claims to a product, claims to a process specially adapted for (i.e., not patentably distinct from, as defined in MPEP § 806.05(f)) making the product, and claims to a process of using the product, applicant may be required to elect either (A) the product and process of making it; or (B) the process of using.”

This means that the applicant typically has two options:

• Elect the product claims along with the process of making claims
• Elect the process of using claims

However, it’s important to note that if the examiner cannot show distinctness between the process of using and the product, a restriction cannot be required between these two.