How does an examiner determine if species are patentably distinct?

An examiner determines if species are patentably distinct by evaluating whether the species have mutually exclusive characteristics and are not obvious variants of each other. The MPEP 808.01(a) states:

“In making a requirement for restriction in an application claiming plural species, the examiner should group together species considered clearly unpatentable over each other.”

This means the examiner must:

  • Identify the unique features of each species
  • Determine if these features are mutually exclusive
  • Assess whether the species would be obvious variants to one skilled in the art
  • Group species that are clearly unpatentable over each other

If the species have distinct features that are not obvious variants, they are considered patentably distinct and may be subject to a species requirement.

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Tags: mutually exclusive characteristics, obvious variants, patentably distinct species, species requirement