5.5.4.5 Product by process claims

Also in this Chapter:

• 5.5.4.1 The claims are construed as a legal document
• 5.5.4.2 Presumption against redundancy
• 5.5.4.3 Omnibus claims
• 5.5.4.4 Swiss claims​​​​​​​
• 5.5.4.6 Parametric claims
• 5.5.4.7 ‘For use in’, ‘when used’, and similar wording in claims
• 5.5.4.8 ‘Comprises‘, ‘includes‘, ‘consists of‘, and ‘contains‘ in claims
• 5.5.4.9 Reference numerals in claims
• 5.5.4.10 Relative terms
• 5.5.4.11 ‘Substantially‘, ‘about‘, and ‘generally’
• 5.5.4.12 Appended claims

Key Legislation: 

Patents Act:

• s7 Novelty, inventive step and innovative step  
• s7A Meaning of useful  
• s18 Patentable inventions
• s40 Specifications 
• s41 Specifications: micro-organisms  

Related Chapters:

National 

• 5.6.7.1 Claims are Clear and Succinct;
• 5.6.7.2 Clear enough and Complete Disclosure
• 5.6.7.3 Support for the Claims
• 5.6.4 Citations: Prior art base and construction of prior art;
• 5.6.5 Novelty, Whole of Contents, and Secret Use;
• 5.6.6 Inventive Step;
• 5.6.7 Full Disclosure, Sufficiency, Clarity, Support and Usefulness (s40) 
• 5.6.8 Patent Eligible Subject Matter (Manner of Manufacture)

International (Vol 6)

• 6.1.11.3 Searching Product by Process Claims

On this page

• Characteristics
• Claim construction.

Characteristics

A ‘product by process’ claim is a claim to an article produced by a process, for example:

• an article A, characterised by being the product of process B;
• an article A produced by process B; and
• an article A obtained by process B.​​​​​​​

Claim construction

Product by process claims are construed to be directed to the article only when the article is obtained or produced by the process. The claim does not extend to the article regardless of the process by which it was obtained or produced (Kirin-Amgen Inc v Roche Diagnostics GmbH (2002) RPC 1 at paragraph 283).

This rule of construction only applies to national examination. For international searching and examination, see 'Key related topics' above.