PCT International Search and Preliminary Examination Guidelines
PART II THE INTERNATIONAL APPLICATION
Product by Process Claims
A5.26 The International Searching and Preliminary Examining Authorities have divergent practices with regard to the search and examination of product by process claims. Either of the alternative guidelines below may be relied upon by an International Authority as appropriate.
A5.26 Where a claim defines a product in terms of the process by which the product is made, the claim should be construed as a claim to the product per se that possesses the characteristics derived from the manufacturing process stated in the claim. Therefore, the patentability of a product defined by a product-by-process claim does not depend on its method of production. A product is not rendered novel merely by the fact that it is produced by means of a new process. If the product in such a claim is the same as, or obvious from, a product described in an item of prior art, the claim is unpatentable even though the product described in the item of prior art was made by a different process.
A5.26 Where a claim defines a product in terms of the process by which the product is made, the claim relates to, and would be anticipated by, only a product which has been actually produced by the process.