What is a product-by-process claim?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-30 10 Rules 5 Related FAQs This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice. A product-by-process claim is a product claim that defines the claimed product in terms of the process by which it is made. According to MPEP 2173.05(p) , “A product-by-process claim, which is a product claim that defines the claimed product in terms of the process by which it is made, is proper.” This type of claim is supported by several court decisions, including Purdue Pharma v. Epic Pharma and In re Luck. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Claim Directed to Product-By-Process or Product and Process MPEP 2173.05(p) Required Claim Directed to System and User Actions Indefinite MPEP 2173.05(p) Proper Product-By-Process Claim MPEP 2173.05(p) Claim to Product May Reference Process MPEP 2173.05(p) Claim May Reference Process Without Being Objectionable Under Section 112(b) MPEP 2173.05(p) Permitted Claims May Vary Even In Product-By-Process Terms MPEP 2173.05(p) Permitted Claim Must Not Mix System and User Actions MPEP 2173.05(p) Claim Must Focus on System Capabilities Not User Actions MPEP 2173.05(p) Permitted Claims Must Particularly Point Out and Distinctly Claim the Invention MPEP 2173 Required Claims Must Particularly Point Out and Distinctly Claim the Invention MPEP 2173 Other Related FAQs 5 FAQs Collapse How can I avoid indefiniteness in claims that reference both products and processes? How are product-by-process claims examined for patentability? Are there any exceptions to the rule against mixing product and process elements in a single claim? What makes a claim indefinite under 35 U.S.C. 112(b)? Can a claim include both a product and a process?