How does the “patentability of a product” relate to its method of production in product-by-process claims?
The patentability of a product claimed in a product-by-process claim is based on the product itself, not the method of production. As stated in MPEP 2113:
“[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production.”
This means that if the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. The focus is on the end product’s structural characteristics, not how it was made.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2113 - Product - By - Process Claims,
Patent Law,
Patent Procedure