How does infringement analysis differ for product-by-process claims?

Infringement analysis for product-by-process claims differs from that of conventional product claims. According to MPEP 2113:

“[I]n the context of an infringement analysis, a product-by-process claim is only infringed by a product made by the process recited in the claim.”

This means that while a prior art product made by a different process can anticipate a product-by-process claim, an accused product must be made by the exact process recited in the claim to infringe it. This creates an interesting dichotomy where the scope of the claim for patentability purposes is broader than its scope for infringement purposes.

To learn more:

• product-by-process claims
• patent infringement
• infringement analysis
• patent scope