What are product-by-process claims in patent law?
What are product-by-process claims in patent law?
Product-by-process claims are a type of patent claim that define a product in terms of the process used to make it. According to MPEP 2173.05(p), “A product-by-process claim, which is a product claim that defines the claimed product in terms of the process by which it is made, is proper.” These claims are particularly useful when the product cannot be adequately described by its structure or composition alone.
The MPEP further states:
“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.”
It’s important to note that in product-by-process claims, the patentability is based on the product itself, not the process used to make it. However, the process steps can be considered if they impart distinctive characteristics to the final product.
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