What are the criteria for establishing distinctness in related inventions?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

To establish distinctness in related inventions, the MPEP 806.05 outlines two key criteria:

• The inventions as claimed must not overlap in scope, i.e., they must be mutually exclusive.
• The inventions as claimed must not be obvious variants of each other.

As stated in MPEP 806.05: “Related inventions in the same statutory class are considered mutually exclusive, or not overlapping in scope, if a first invention would not infringe a second invention, and the second invention would not infringe the first invention.”

Additionally, the examiner must provide reasons why the inventions are not obvious variants of each other based on the current record.