How do examiners determine if a prior art product is “identical” to a product-by-process claim?
Examiners determine if a prior art product is “identical” to a product-by-process claim by focusing on the product’s structure and characteristics, not its method of production. According to MPEP 2113: “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…
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