How does the purification of an old product impact its patentability?
The purification of an old product can impact its patentability, but mere purity alone is not always sufficient to render a product nonobvious. According to MPEP 2144.04, “Pure materials are novel vis-à-vis less pure or impure materials because there is a difference between pure and impure materials. Therefore, the issue is whether claims to a pure material are nonobvious over the prior art.”
Key factors to consider:
- Does the purified form have the same utility as closely related materials in the prior art?
- Does the prior art suggest the particular form or structure of the claimed material?
- Are there suitable methods in the prior art for obtaining that form or structure?
- Does the purified product have any structural or functional differences from products produced by other prior art processes?
It’s important to note that “if a first prior art process is improved to enhance the purity of the product produced by the process, and if the purified product has no structural or functional difference from the products produced by other prior art processes, then the improvement in the first process that improves the purity of the product does not give rise to patentability.” (Purdue Pharma v. Epic Pharma)
Inventors seeking patents for purified products should focus on demonstrating unexpected properties, new utilities, or significant advantages over the impure form to strengthen their case for patentability.
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