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Copyright (c) 2004 Patent and Trademark Office Society, All Rights Reserved
Journal of the Patent and Trademark Office Society

ARTICLE: Understanding & Simplifying Restriction Practice Under 35 USC 121 1

January 2004

86 J. Pat. & Trademark Off. Soc'y 17

Author

Jon W. Henry 2

Excerpt

I. INTRODUCTION

35 USC 121, first sentence, recites as follows: "If two or more independent and distinct inventions are claimed in a single patent application, the Director may require the application to be restricted to one of the inventions." 3 "Independent" inventions may be defined as inventions that are reasonably assumed to lack unity of invention, and "distinct" inventions may be defined as inventions that are a priori (before search and examination) reasonably assumed to be patentably distinct from one another (one-way or two-way, as appropriate). 4 Additionally, the determination that the inventions are "independent and distinct" may be made a priori (before search and examination of any of the inventions) as stated in the federal rules 5 and in the Manual of Patent Examining Procedure (MPEP), 6 even if a linking claim is present. 7 This article considers how and why restriction practice operates in an imperfect manner to prevent the search and examination of claimed inventions in one application overwhelming an examiner. 8 This article also explains how restriction practice may be simplified in order for restriction practice to better prevent the filing of multiple inventions in one application overwhelming an examiner.

This article is in fifteen sections, including this Introduction, Section I, and the Conclusion, Section XVI. Sections II - IV explain how "independent and distinct" inventions are divided in restriction practice. 9 Section V explains why "independent" inventions and "distinct" inventions are defined as they are. Section VI gives ...
 
 
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