What is the examiner’s burden of proof for subcombinations usable together?
The examiner’s burden of proof for subcombinations usable together is outlined in MPEP 806.05(d):
“The burden is on the examiner to provide an example to support the determination that the inventions are distinct, but the example need not be documented.”
This means that the examiner must:
- Provide an example showing how the subcombinations are distinct
- Demonstrate that at least one subcombination is separately usable
- Show that the inventions do not overlap in scope and are not obvious variants
However, the examiner is not required to provide documented evidence for the example. It’s sufficient to present a logical explanation or hypothetical scenario that illustrates the distinctness and separate usability of the subcombinations.
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