How does the markedly different characteristics analysis apply to process claims?

The application of the markedly different characteristics analysis to process claims is generally different from its application to product claims. The MPEP provides the following guidance:

“For a process claim, the general rule is that the claim is not subject to the markedly different analysis for nature-based products used in the process. This is because the analysis of a process claim should focus on the active steps of the process rather than the products used in those steps.“

Key points to consider:

• Process claims are generally not subject to the markedly different characteristics analysis.
• The focus is on the active steps of the process, not the nature-based products used in the process.
• However, there is an exception to this rule for certain process claims that are essentially no different from a product claim.

The MPEP provides an example: “For example, a claim that recites, in its entirety, “a method of providing an apple” … is focused on the apple fruit itself, which is a nature-based product.“

In such cases where the process claim is essentially directed to a nature-based product, the markedly different characteristics analysis would be applied to the nature-based product.

It’s important to carefully analyze process claims to determine whether they are truly directed to a process or if they are essentially claiming a product of nature.

To learn more:

• markedly different characteristics
• process claims
• nature-based products
• patent eligibility