How does infringement analysis differ for 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. 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. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Prior Art Product Can Anticipate But Not Infringe MPEP 2113 Prohibited Prior Art Product Identical to Claimed Product MPEP 2113 Same Product, Different Process Anticipation MPEP 2113 Same Product as Prior Art Invalidates Claim MPEP 2113 Product Determination Over Process MPEP 2113 Same Product Anticipation Irrespective of Process MPEP 2113 Product Patency Over Process MPEP 2113 Required Product Anticipation Over Process MPEP 2113 Same Product Anticipation MPEP 2113 Structure Implied by Process Steps for Product-by-Process Claims MPEP 2113 Recommended 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-...