When should the structure implied by process steps be considered in product-by-process claims?
The structure implied by process steps should be considered when assessing the patentability of product-by-process claims in certain situations. MPEP 2113 states:
“The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
This means that if the process steps result in a product with unique structural features that are not present in the prior art, these features should be taken into account when determining patentability. Examples of terms that may imply structure include “welded,” “intermixed,” and “ground in place.”
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