What is two-way distinctness in the context of subcombinations usable together?
Two-way distinctness is a crucial concept in determining whether subcombinations usable together can be restricted. According to MPEP 806.05(d):
“To support a restriction requirement where applicant separately claims plural subcombinations usable together in a single combination and claims a combination that requires the particulars of at least one of said subcombinations, both two-way distinctness and reasons for insisting on restriction are necessary.”
Two-way distinctness means that:
- The combination does not require the particulars of the subcombination as claimed for patentability (e.g., to show novelty and unobviousness)
- The subcombination can be shown to have utility either by itself or in another materially different combination
This two-way test ensures that the subcombinations are truly independent and distinct from each other and from the combination. If both conditions are met, along with other requirements like serious search and/or examination burden, a restriction requirement may be proper.
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