How does the “patentability of a product” relate to its method of production in product-by-process claims?

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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. 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. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Prior Art Product Can Anticipate But Not Infringe MPEP 2113 Prohibited Same Product as Prior Art Invalidates Claim MPEP 2113 Product Determination Over Process MPEP 2113 Prior Art Product Identical to Claimed Product MPEP 2113 Same Product, Different Process Anticipation MPEP 2113 Same Product Anticipation MPEP 2113 Same Product Anticipation Irrespective of Process MPEP 2113 Obviousness of Product from Process MPEP 2113 Same Product Anticipation MPEP 2113 Product Patency Over Process MPEP 2113 Required Other Related FAQs 5 FAQs Collapse What is the burden of proof in product-by-process claim rejections? What is the &#8220;burden-shifting&#8221; approach in examining product-by-process claims? How do examiners determine if a prior art product is &#8220;identical&#8221; to a product-by-process claim? What evidence can applicants provide to establish nonobvious differences in product-by-process claims? What is the role of the examiner in evaluating product-by...