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EPO: claims directed to the use of a product produced by a process

Recently, the Technical Boards of Appeal had to decide on a claim under Article 84 EPC (clarity) which comprises process and product features (T 0081/14). More specifically, the claim being at stake concerned the use of a sintered cemented carbide body obtained according to a defined method for the production of a cutting tool.

The Board pointed out that the definition of a product is normally done by means of the structural features of the product. A definition in terms of the process of manufacture (“product-by-process definition”) is reserved for cases wherein a definition in terms of structural features is not possible. This principle is well established in the case law for a claim which is directed to a product (“product-by-process claims”).

In contrast thereto, the present claim is not directed to a product but to the use of a product which is equivalent to a claim directed to a process for the production of a cutting tool using the sintered cemented carbide body.

In this respect the Board stated that there is no reason to make the principles underlying the assessment of the clarity of product features dependent on the fact that said product features appear in a claim directed to a product or in a claim directed to a method.

Consequently, the Board decided that when considering the definition of a product in terms of its production process the principles developed in the jurisprudence for the “product-by-process claims” are in general to be applied, also in the case of a claim directed to the use of that product.

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