How are product-by-process claims evaluated for patentability?
According to MPEP 2113, the evaluation of product-by-process claims focuses on the final product, not the process of making it. The MPEP states:
“If the product in the 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.”
This means that examiners will compare the claimed product to prior art products, regardless of how those products were made. If the claimed product appears to be the same or obvious in light of a prior art product, it may be rejected under 35 U.S.C. 102 (anticipation) or 35 U.S.C. 103 (obviousness).
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2113 - Product - By - Process Claims,
Patent Law,
Patent Procedure