What is the significance of the terms “independent” and “distinct” in 35 U.S.C. 121?

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.

The terms “independent” and “distinct” in 35 U.S.C. 121 are crucial for understanding when the Director of the USPTO may require restriction in patent applications. According to MPEP 802.01:

“35 U.S.C. 121 quoted in the preceding section states that the Director may require restriction if two or more ‘independent and distinct’ inventions are claimed in one application.”

The significance of these terms lies in their interpretation:

• Independent: This refers to inventions that are unrelated or not dependent on each other.
• Distinct: This term allows for related inventions to be considered separately if they meet certain criteria of distinctness.

The MPEP clarifies that the use of both terms is intentional, stating: “joinder of the term ‘distinct’ with the term ‘independent’, indicates lack of such intent [to change substantive law].” This means that the Director has the authority to require restriction not only between completely unrelated inventions but also between related inventions that are distinct enough to be considered separately.