How does an examiner handle species that are not patentably distinct?
When an examiner encounters species that are not patentably distinct, they should group these species together. The MPEP 809.02(a) provides guidance:
“In making a requirement for restriction in an application claiming plural species, the examiner should group together species considered clearly unpatentable over each other.”
The examiner’s approach includes:
- Identifying species that are obvious variants or closely related
- Grouping these species together in the restriction requirement
- Examining the grouped species together if one is elected
- Potentially withdrawing the restriction requirement if all species are found to be not patentably distinct
This approach ensures efficient examination while maintaining the integrity of the restriction process.
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