What is the “two-way distinctness” test in patent examination?
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.
What is the “two-way distinctness” test in patent examination?
The “two-way distinctness” test is a crucial concept in patent examination for determining whether related inventions are distinct. According to MPEP 806.05, this test involves the following:
“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.”
To apply the two-way distinctness test, an examiner must:
- Determine if the first claimed invention would infringe on the second claimed invention.
- Determine if the second claimed invention would infringe on the first claimed invention.
If neither invention would infringe on the other, they are considered mutually exclusive and distinct. This test ensures that the inventions are truly separate and can be pursued in different applications or patents.