How can I avoid indefiniteness in claims that reference both products and processes?

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.

To avoid indefiniteness in claims that reference both products and processes, follow these guidelines from MPEP 2173.05(p):

1. Ensure the claim is clearly directed to either the product or the process, not both.
2. When referencing a process in a product claim, make it clear that the claim is for the product intended to be used in the process, not the process itself.
3. Focus on the capabilities of the system or product, rather than specific actions performed by a user.

The MPEP states: “In contrast, when a claim recites a product and additional limitations which focus on the capabilities of the system, not the specific actions or functions performed by the user, the claim may be definite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.”

By following these guidelines, you can draft claims that reference both products and processes without risking indefiniteness rejections.