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806.05(e) Process and Apparatus for Its Practice [R-5] - 800 Restriction in Applications Filed Under 35 U.S.C. 111; Double Patenting
806.05(e) Process and Apparatus for Its Practice [R-5]
Process and apparatus for its practice can be shown to be distinct inventions, if either or both of the following can be shown: (A) that the process as claimed can be practiced by another materially different apparatus or by hand; or (B) that the apparatus as claimed can be used to practice another materially different process.
Form paragraph 8.17 may be used to make restriction requirements between process and apparatus.
**>¶ 8.17 Process and Apparatus
Inventions [1] and [2] are related as process and apparatus for its practice. The inventions are distinct if it can be shown that either: (1) the process as claimed can be practiced by another materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another materially different process. ( MPEP § 806.05(e)). In this case [3].
Examiner Note
1. This form paragraph is to be used when claims are presented to both a process and apparatus for its practice ( MPEP § 806.05(e)).
2. In bracket 3, use one or more of the following reasons:
--the process as claimed can be practiced by another materially different apparatus such as......--,
--the process as claimed can be practiced by hand--,
--the apparatus as claimed can be used to practice another materially different process such as......--.
3. A process can be practiced by hand if it can be performed without using any apparatus.
4. Conclude restriction requirement with one of form paragraphs 8.21.01 through 8.21.03.
<The burden is on the examiner to provide reasonable examples that recite material differences.
If applicant proves or provides convincing argument that there is no material difference or that a process cannot be performed by hand (if examiner so argued), the burden is on the examiner to document another materially different process or apparatus or withdraw the requirement.
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