MPEP 2113: Product-by-Process Claims

Answer in brief

MPEP 2113 says a product-by-process claim is judged on the product, not the process. "If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process" (In re Thorpe).

What MPEP 2113 covers

Process steps in a product claim matter only to the extent they imply structure in the final product.

Process limitations count only if they give the product distinctive structural characteristics.
Once the examiner shows the prior art product appears the same, the burden shifts to the applicant to show a nonobvious difference.

How examiners use it

Examiners often combine 2113 with inherency: the prior art product looks identical, so the applicant must prove the claimed process produces a structurally different product.

On the patent bar

Know that a new process alone cannot make an old product patentable in a product-by-process claim.

Read the full text

Official title: Product-by-Process Claims [R-01.2024].

Read MPEP 2113 in full on Wysebridge ↗

Or at the source: USPTO MPEP § 2113.

Sources for this entry

USPTO — MPEP § 2113 USPTO
Official text of this section, Ninth Edition, Revision 01.2024.
Wysebridge MPEP Center Wysebridge (publisher of this site)
The full MPEP (9th Ed., Rev. 01.2024) free to read, with Wysebridge's estimated patent bar weight for each chapter.

Practical guidance is original editorial content. Company-published figures are the company's own claims and are labeled as such.

Continue this reading path

MPEP 2112: Inherency MPEP 2114: Functional Language in Apparatus Claims

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Cite or share this entry

MPEP.net. “MPEP 2113: Product-by-Process Claims.” Wysebridge Reference. Content reviewed 9 November 2026.
https://mpep.net/mpep-2113/