Research On "product-by-process Claims"

The necessity rule is not applicable in the U.S. that a claim for a product could be defined by reference to the method of its production only when the product could not be adequately defined in any other fashion. It has long been controversial in American judicial practice whether process terms in product-by-process claims serve as limitations in determining infringement. One view represented by Judge Newman is that product-by-process claims are not limited to product prepared by the process set forth in the claims. Another view represented by Judge Rader is that process terms in product-by-process claims serve as limitations in determining infringement.In order to solve this dispute, the Federal Circuit in the case of Abbott Labs v. Sandoz addresses this opinion en banc, which addresses the proper interpretation of product-by-process claims in determining infringement, the Federal Circuit construed product-by-process claims as limited by the process. However, in determining patentability such as novelty and non-obviousness, the U.S. Courts insist that patentability of a product is only relative to the product itself, not to the process stated in the claims.There are no clear stipulations on product-by-process claims in China, Neither a clear " product-by-process claims" the "necessity" rule, nor is clear in the novel, patentability of product-by-process claims whether to consider the process,there is no clear whether to consider the process in determining infringement. Through the United States "Product-by-Process Claims" Analysis of judicial practice and Reference, We should insist on the necessity rule in Drafting patent. In determining both infringement and patentability of product-by-process claims, we should construe product as limited by the process stated in the claims.