How does the “was-was” analysis apply to product-by-process claims?
The “was-was” analysis is a key concept in evaluating product-by-process claims. According to MPEP 2113:
“The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
This analysis involves comparing the structure of the claimed product to the structure of the prior art product. If the structures are the same or only slightly different, the claim may be rejected, even if the manufacturing processes differ.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2113 - Product - By - Process Claims,
Patent Law,
Patent Procedure