What are the criteria for establishing distinctness between a process of making and product made?
What are the criteria for establishing distinctness between a process of making and product made?
To establish distinctness between a process of making and product made, the following criteria must be met:
- The process as claimed can be used to make another materially different product, or
- The product as claimed can be made by another materially different process.
This is explicitly stated in MPEP 806.05(f): “A process of making and a product made by the process can be shown to be distinct inventions if either or both of the following can be shown: (A) that the process as claimed is not an obvious process of making the product and the process as claimed can be used to make another materially different product; or (B) that the product as claimed can be made by another materially different process.”
It’s important to note that the burden is on the examiner to provide an example, but the example need not be documented.
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