How are subcombinations treated as species in patent applications?
Subcombinations can be treated as species in patent applications when they fall under a common generic invention. The MPEP 806.04(b) provides an example:
“For example, two different subcombinations usable with each other may each be a species of some common generic invention.”
In such cases, the restriction practice must address both the election of species rules and the rules applicable to restrictions between combinations and subcombinations. This requires a careful analysis to determine if restriction is proper under both sets of rules. Patent examiners must consider the relationship between the subcombinations and their usability with each other to make a proper determination.
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