What happens if subcombinations are both species under a claimed genus and related?
When subcombinations are both species under a claimed genus and related, the question of restriction becomes more complex. MPEP 806.05(d) provides guidance on this situation:
“Where subcombinations as disclosed and claimed are both (a) species under a claimed genus and (b) related, then the question of restriction must be determined by both the practice applicable to election of species and the practice applicable to related inventions. If restriction is improper under either practice, it should not be required (MPEP § 806.04(b)).”
This means that examiners must consider:
- The rules for election of species
- The rules for restricting related inventions
If the restriction would be improper under either set of rules, then it should not be required. This approach ensures that restrictions are only made when necessary and appropriate, considering both the species-genus relationship and the relationship between the inventions themselves.
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