How does the examiner determine if species are patentably distinct?
Examiners determine if species are patentably distinct by evaluating their unique characteristics and search burden. The MPEP 809.02(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.”
Examiners assess whether:
- The species have mutually exclusive characteristics
- The species are not obvious variants of each other
- Searching for one species does not likely result in finding art pertinent to the other species
If these criteria are met, the species are considered patentably distinct, warranting a restriction requirement.
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