MPEP § 802 — MPEP § 802
Current through: 2022-07-01

802-Basis for Restriction Practice in Statute and Rules 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Chapter 0800 

 Section 802 
 

 
 
 
 
 
 802 Basis for Restriction Practice in Statute and Rules [R-07.2015]

 The basis for restriction practice is found in the following statute and
 rules:
 

 
 35 U.S.C. 121 
 Divisional applications. 

 [ Editor Note:
 Applicable to any patent application filed on or after September 16, 2012. See
 pre-AIA 35
 U.S.C. 121 for the law otherwise applicable. ]
 

 If two or more independent and distinct inventions are
 claimed in one application, the Director may require the application to be restricted to
 one of the inventions. If the other invention is made the subject of a divisional
 application which complies with the requirements of section 120 it
 shall be entitled to the benefit of the filing date of the original application. A
 patent issuing on an application with respect to which a requirement for restriction
 under this section has been made, or on an application filed as a result of such a
 requirement, shall not be used as a reference either in the Patent and Trademark Office
 or in the courts against a divisional application or against the original application or
 any patent issued on either of them, if the divisional application is filed before the
 issuance of the patent on the other application. The validity of a patent shall not be
 questioned for failure of the Director to require the application to be restricted to
 one invention. 
 

 

 
 pre-AIA 35 U.S.C. 121 
 Divisional applications. 

 [ Editor Note: Not applicable to any
 patent application filed on or after September 16, 2012. See 35 U.S.C.
 121 for the law otherwise applicable. ]
 

 If two or more independent and distinct inventions are claimed in one
 application, the Director may require the application to be restricted to one of the
 inventions. If the other invention is made the subject of a divisional application which
 complies with the requirements of section 120 of this title it shall
 be entitled to the benefit of the filing date of the original application. A patent
 issuing on an application with respect to which a requirement for restriction under this
 section has been made, or on an application filed as a result of such a requirement,
 shall not be used as a reference either in the Patent and Trademark Office or in the
 courts against a divisional application or against the original application or any
 patent issued on either of them, if the divisional application is filed before the
 issuance of the patent on the other application. If a divisional application is directed
 solely to subject matter described and claimed in the original application as filed, the
 Director may dispense with signing and execution by the inventor. The validity of a
 patent shall not be questioned for failure of the Director to require the application to
 be restricted to one invention. 
 

 

 
 37 CFR 1.141 Different inventions in one national application. 

 (a) Two or more independent and distinct inventions may not be claimed
 in one national application, except that more than one species of an invention, not to
 exceed a reasonable number, may be specifically claimed in different claims in one
 national application, provided the application also includes an allowable claim generic
 to all the claimed species and all the claims to species in excess of one are written in
 dependent form ( §
 1.75 ) or otherwise include all the limitations of the generic
 claim.
 

 (b) Where claims to all three categories, product, process of making,
 and process of use, are included in a national application, a three way requirement for
 restriction can only be made where the process of making is distinct from the product.
 If the process of making and the product are not distinct, the process of using may be
 joined with the claims directed to the product and the process of making the product
 even though a showing of distinctness between the product and process of using the
 product can be made. 
 

 

 
 37 CFR 1.142 Requirement for restriction. 

 
 (a) If two or more independent and distinct inventions are claimed in
 a single application, the examiner in an Office action will require the applicant
 in the reply to that action to elect an invention to which the claims will be
 restricted, this official action being called a requirement for restriction (also
 known as a requirement for division). Such requirement will normally be made
 before any action on the merits; however, it may be made at any time before final
 action.
 

 (b) Claims to the invention or inventions not elected, if not
 canceled, are nevertheless withdrawn from further consideration by the examiner by
 the election, subject however to reinstatement in the event the requirement for
 restriction is withdrawn or overruled.
 

 
 

 The pertinent Patent Cooperation Treaty (PCT) Articles and Rules are cited
 and discussed in MPEP
 Chapter 1800 . Sections 1850 , 1875 , and
 1893.03(d) should be consulted for discussions on unity of
 invention: 
 

 
 (A) before the International Searching Authority; 

 (B) before the International Preliminary Examining Authority; and 

 (C) in the National Stage under 35 U.S.C. 371 .
 

 
 
 802.01 Meaning of “Independent” and “Distinct” [R-08.2012]

 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. In 37
 CFR 1.141 , the statement is made that two or more “independent and
 distinct inventions” may not be claimed in one application.
 

 This raises the question of the inventions as between which the Director
 may require restriction. This, in turn, depends on the construction of the expression
 “independent and distinct” inventions.
 

 “Independent”, of course, means not dependent, or unrelated. If
 “distinct” means the same thing, then its use in the statute and in the rule is
 redundant. If “distinct” means something different, then the question arises as to what
 the difference in meaning between these two words may be. The hearings before the
 committees of Congress considering the codification of the patent laws indicate that
 35 U.S.C.
 121 : “enacts as law existing practice with respect to division, at
 the same time introducing a number of changes.” 
 

 The report on the hearings does not mention as a change that is
 introduced, the inventions between which the Director may properly require division.
 

 The term “independent” as already pointed out, means not dependent, or
 unrelated. A large number of inventions between which, prior to the 1952 Act, division
 had been proper, are dependent inventions, such as, for example, combination and a
 subcombination thereof; as process and apparatus used in the practice of the process; as
 composition and the process in which the composition is used; as process and the product
 made by such process, etc. If section 121 of the 1952 Act were intended to direct the
 Director never to approve division between dependent inventions, the word “independent”
 would clearly have been used alone. If the Director has authority or discretion to
 restrict independent inventions only, then restriction would be improper as between
 dependent inventions, e.g., the examples used for purpose of illustration above. Such
 was clearly not the intent of Congress. Nothing in the language of the statute and
 nothing in the hearings of the committees indicate any intent to change the substantive
 law on this subject. On the contrary, joinder of the term “distinct” with the term
 “independent”, indicates lack of such intent. The law has long been established that
 dependent inventions (frequently termed related inventions) such as used for
 illustration above may be properly divided if they are, in fact, “distinct” inventions,
 even though dependent. 
 

 I. INDEPENDENT The term “independent” (i.e., unrelated) means that there is no
 disclosed relationship between the two or more inventions claimed, that is, they are
 unconnected in design, operation, and effect. For example, a process and an apparatus
 incapable of being used in practicing the process are independent inventions. See
 also MPEP §
 806.06 and § 808.01 .
 

 II. RELATED BUT DISTINCT Two or more inventions are related (i.e., not independent) if they
 are disclosed as connected in at least one of design (e.g., structure or method of
 manufacture), operation (e.g., function or method of use), or effect. Examples of
 related inventions include combination and part (subcombination) thereof, process and
 apparatus for its practice, process and product made, etc. In this definition the
 term related is used as an alternative for dependent in referring to inventions other
 than independent inventions.
 

 Related inventions are distinct if the inventions as
 claimed are not connected in at least one of design, operation, or
 effect (e.g., can be made by, or used in, a materially different process) and wherein
 at least one invention is PATENTABLE (novel and nonobvious) OVER THE OTHER (though
 they may each be unpatentable over the prior art). See MPEP § 806.05(c) 
 (combination and subcombination) and § 806.05(j) (related products or
 related processes) for examples of when a two-way test is required for
 distinctness.
 

 It is further noted that the terms “independent” and “distinct” are
 used in decisions with varying meanings. All decisions should be read carefully to
 determine the meaning intended.
 

 

 
 802.02 Definition of Restriction [R-08.2012]

 Restriction is the practice of requiring an applicant to elect a single
 claimed invention (e.g., a combination or subcombination invention, a product or process
 invention, a species within a genus) for examination when two or more independent
 inventions and/or two or more distinct inventions are claimed in an application.
 

 

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 801-Introduction 

 802-Basis for Restriction Practice in Statute and Rules 
 802.01-Meaning of “Independent” and “Distinct” 

 802.02-Definition of Restriction 

 
 

 803-Restriction — When Proper 
 803.01-Review by Examiner with at Least Partial Signatory Authority 

 803.02-Election of Species Requirements – Markush Claims 

 803.03-Transitional Applications 
 803.03(a)-Transitional Application — Linking Claim Allowable 

 803.03(b)-Transitional Application — Generic Claim Allowable 

 
 

 803.04-Nucleotide Sequences 

 803.05-Reissue Application Practice 

 
 

 804-Definition of Double Patenting 
 804.01-Prohibition of Nonstatutory Double Patenting Rejections Under 35 U.S.C. 121 

 804.02-Avoiding a Double Patenting Rejection 

 804.03-Commonly Owned Inventions of Different Inventive Entities; Non-Commonly Owned Inventions Subject to a Joint Research Agreement 

 804.04-Submission to Technology Center Director 

 804.05-Impact of Patent Term Extension under 35 U.S.C. 156 on Nonstatutory Double Patenting 

 
 

 805-Effect of Improper Joinder in Patent 

 806-Determination of Distinctness or Independence of Claimed Inventions 
 806.01-Compare Claimed Subject Matter 

 806.02-[Reserved] 

 806.03-Single Embodiment, Claims Defining Same Essential Features 

 806.04-Genus and/or Species Inventions 
 806.04(a)-[Reserved] 

 806.04(b)-Species May Be Independent or Related Inventions 

 806.04(c)-[Reserved] 

 806.04(d)-Definition of a Generic Claim 

 806.04(e)-Claims Limited to Species 

 806.04(f)-Restriction Between Mutually Exclusive Species 

 806.04(g)-[Reserved] 

 806.04(h)-Species Must Be Patentably Distinct From Each Other 

 806.04(i)-Generic Claims Presented In a Separate Application After Issuance of Species Claims 

 
 

 806.05-Related Inventions 
 806.05(a)-Combination and Subcombination 

 806.05(b)-[Reserved] 

 806.05(c)-Criteria of Distinctness Between Combination and Subcombination 

 806.05(d)-Subcombinations Usable Together 

 806.05(e)-Process and Apparatus for Its Practice 

 806.05(f)-Process of Making and Product Made 

 806.05(g)-Apparatus and Product Made 

 806.05(h)-Product and Process of Using 

 806.05(i)-Product, Process of Making, and Process of Using 

 806.05(j)-Related Products; Related Processes 

 
 

 806.06-Independent Inventions 

 
 

 807-Patentability Report Practice Has No Effect on Restriction Practice 

 808-Reasons for Insisting Upon Restriction 
 808.01-Reasons for Holding of Independence or Distinctness 
 808.01(a)-Species 

 
 

 808.02-Establishing Burden 

 
 

 809-Linking Claims 
 809.01-[Reserved] 

 809.02-Election of Species Required 
 809.02(a)-Election of Species Required 

 
 

 809.03-Restriction Between Linked Inventions 

 
 

 810-Action on the Merits 

 811-Time for Making Requirement 
 811.01-[Reserved] 

 811.02-New Requirement After Compliance With Preceding Requirement 

 811.03-Repeating After Withdrawal Proper 

 811.04-Proper Even Though Grouped Together in Parent Application 

 
 

 812-Who Should Make the Requirement 
 812.01-Telephone Restriction Practice 

 
 

 813-[Reserved] 

 814-Indicate Exactly How Application Is To Be Restricted 

 815-Make Requirement Complete 

 816-[Reserved] 

 817-Outline of Letter for Restriction Requirement 

 818-Election and Reply 
 818.01-Election in Reply to a Restriction Requirement: Express 
 818.01(a)-Reply Must be Complete 

 818.01(b)-Election is Required, Even When Requirement Is Traversed 

 818.01(c)-Traverse is Required To Preserve Right of Petition 

 818.01(d)-Traverse of Restriction Requirement With Linking Claims 

 
 

 818.02-Election Other Than Express 
 818.02(a)-Election By Originally Presented Claims 

 818.02(b)-Generic Claims Only — No Election of Species; Linking Claims Only – No Election of Invention 

 818.02(c)-Election By Optional Cancelation of Claims 

 818.02(d)-Election By Cancelation of Claims, Lacking Express Election Statement 

 
 

 
 

 819-Office Generally Does Not Permit Shift 

 820-[Reserved] 

 821-Treatment of Claims Held To Be Drawn to Nonelected Inventions 
 821.01-After Election With Traverse 

 821.02-After Election Without Traverse 

 821.03-Claims for Different Invention Added After an Office Action 

 821.04-Rejoinder 
 821.04(a)-Rejoinder Between Product Inventions; Rejoinder Between Process Inventions 

 821.04(b)-Rejoinder of Process Requiring an Allowable Product 

 
 

 
 

 822-Claims to Inventions That Are Not Patentably Distinct in Plural Applications of Same Applicant or Assignee 

 823-Unity of Invention Under the Patent Cooperation Treaty 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:49:44