As we have discussed in past posts, every practitioner needs to be ready to push back against improper restrictions, particularly when examiners uses the common reasoning of mutual exclusivity (see here). In some cases, the restriction will do no more than a statement such as the following:

Claims X are directed to species A, while claims Y are directed to species B. The above species are independent or distinct because each species recites mutually exclusive characteristics of such species.

If you are lucky, you may get a little more detail, such as a few examples of alleged mutually exclusive features, which are typically just some difference in the claims. You would be surprised how many restrictions are nothing more than what is listed above. While there surely are claims that recite mutually exclusive features, it behooves the practitioner to take a quick look when facing such a restriction.

One example of an applicant pushing back on such a restriction (in coordination with a pre-appeal request, is SN 14/139695). The invention there relates to a social networking system where groups of mobile devices are formed and where calendared event can be used to generate alerts based on the event time and position of the mobile device. The examiner issued a restriction to newly presented claims in the final rejection (see a previous post about such timing) and alleged there were mutually exclusive species. The applicant presented a simple argument that the differences between the claims related to broader or narrower scope, not to anything that was mutually exclusive. From this, the applicant argued that the two-way distinctiveness required for mutual exclusivity was missing. The applicant also presented a pre-appeal request. In the end, the restriction was overturned and the pre-appeal conference indicated allowable claims.