Products claim, patents

Some commercial durable antistatic finishes have been Hsted in Table 3 (98). Early patents suggest that amino resins (qv) can impart both antisHp and antistatic properties to nylon, acryUc, and polyester fabrics. CycHc polyurethanes, water-soluble amine salts cross-linked with styrene, and water-soluble amine salts of sulfonated polystyrene have been claimed to confer durable antistatic protection. Later patents included dibydroxyethyl sulfone [2580-77-0] hydroxyalkylated cellulose or starch, poly(vinyl alcohol) [9002-86-2] cross-linked with dimethylolethylene urea, chlorotria2ine derivatives, and epoxy-based products. Other patents claim the use of various acryUc polymers and copolymers. Essentially, durable antistats are polyelectrolytes, and the majority of usehil products involve variations of cross-linked polyamines containing polyethoxy segments (92,99—101). 

An examination of two listed product-by-process patents illustrates this latter point. Patent Nos. 6,063,927 (the 927 patent) and 6,172,233 ( 233) both claim paroxetine hydrochloride made according to specified processes. In each case, the patent itself acknowledges that paroxetine hydrochloride was well known at the time the brand-name company applied for the patents. The brand-name company represented to the Patent Office in the patent document that the recited process was new and made the claims patentable. Therefore, if valid, these patents cover only those products (paroxetine hydrochloride) made according to the specified process, just as process patents cover products made according to the specified process. In contrast, product patents, such as listable drug substance and formulation patents, cover a product regardless of the process by which it is made. Thus, product-by-... 

The ZambonU.S. Patent18 covered processes only. Product claims to intermediates were divided out from that parent patent, in both the United States and Europe, and became the subject of a later patent.19... 

Product claims Compounds, libraries of compounds, phage, assay devices Method of using compounds, more efficient way of making compounds, can still be patented by others the product is new... 

There are basically three types of patent claims (i) product or compound claims (ii) process or method claims and (iii) product-by-process claims (see Table 3). The name of each type of claim is self-defining. Product claims cover devices such as robotics [2] which are used in combinatorial chemistry. In addition, these claims can cover a particular compound, group of compounds or even an entire library of compounds [3], Note that... 

In addition to claiming libraries via a standard product claim, the 684 patent includes a product-by-process claim as follows. 

We now find that the court has narrowed the patent to four product claims, and, as to these, the defendant can argue that he does not come within their terms. The reason The claims now left all call for the welding composition to have a major proportion of alkaline earth silicate, whereas the defendant s composition does not contain a major proportion of alkaline earth metal silicate, but rather a major proportion of manganese silicate. Manganese, however, is not classified as an alkaline earth metal, so that now the only thing that can save plaintiff s case is to have the court hold that manganese silicate is the equivalent of calcium or other alkaline earth silicates. Fortunately for the plaintiff, the court... 

Chemicals are classified as compositions of matter from a patent statute viewpoint. A claim on a composition protects the inventor without regard to the use of the product. Where a new use is found for an old chemical, if the new use incorporates a change in the physical form or packaging, sometimes product claims can be obtained. More commonly, the new discovery must be claimed as a method of using. Examples are given to illustrate the type of wording which has met acceptance in the Patent Office. No matter how worded, the legal requirements for patentability, particularly unobviousness, must be met. 

When patent protection is sought on a new use of a chemical, a first and important question is whether that new use requires a particular degree of purity, crystalline phase, admixture with diluents, location or storage facilities. If any of these or any other physical attribute is both novel and essential to the new use, a product claim limited to the new attribute should be considered. 

An example of invention in which a new crystalline form of an old compound resulted in product claims is a Pfeiffer patent (34). Claim 1 thereof reads ... 

The Ryan article mentions six cases in which use patents were upheld by the U. S. Supreme Court. All were prior to 1902. A product claim phrased as a use is obsolete. 

There are numerous decisions that hold product claims to chemical compounds as compositions of matter to be valid within the meaning of the patent statutes. With few exceptions there are no specific references to the rule that products of nature are unpatentable. The statements in the decisions are in sharp contrast with the thought that the rule was at all applicable. For example in the Kuehmsted case (tf), the pure chemical compound known generally as aspirin was held to be patentable because of its new utility. The court held that whatever may have been its antecedents chemically, aspirin in pure form was a new thing. The formerly known crude material was legally a different material in that it had no utility as a medicinal. The court held that aspirin was an article of manufacture within the meaning of the patent law. 

Of course, the discovery of a new quality of an old product does not make the product itself patentable, but invention may be claimed in a new process of using the product—for example, in applying it to vegetation as an insecticide or in a new composition of matter involving its admixture with a carrier which makes it suitable for the novel purpose 11). 

Independent use patents offer the weakest patent protection. They almost invite others to seek possibilities to circumvent them and they do not cover the products that result from the invented new use. Wherever the necessary requirements are fulfilled, product patents should be applied for. In the first example given above, it seems hardly justified to construct product claims for (all) products made by the modified fermentation process. The excipient with adjuvant effects could probably be patented as a product patent, claiming "vaccines containing substance X as a novel adjuvant" with the non-obvious advantage of a better tolerability or efficacy over existing adjuvants. As for the third example, any advantageous characteristic of the resulting product may be used to justify a product patent. 

The above generalization may fortunately be going out of style, in that more and more chemical patents cany specific titles and have claims that are informative even to amateur patent attorneys. An excellent example is the patent on streptomycin and process of preparation, which was assigned to the nonprofit Rutgers Research and Endowment Foundation (14). The specification scarcely differs from a scientific paper and the process claims constitute easily understandable summaries of essential steps in the manufacturing procedure. Claim 13, a product claim, cannot be surpassed for conciseness T3. Streptomycin. ... 

Products claims bestow a protection that can be regarded as absolnte. Until the beginnings of 1990 s, in most of Eastern Enrope patents systems, it was not possible to claim new componnds. 

A product claim that defines the claimed product in terms of the process by which it is made A product made by the process comprising of steps. .. Patentability based on product itself and NOT on method of production. If the product is the same (as prior art), using another process does not make it patentable. If examiner shows that product appears to be the same or similar the burden shifts to the applicant United States Patent and Trademark Office bears lesser burden of proof in making out a case of piima facie obviousness. One-step method claims are acceptable, but claims where body consists of single "means" elements are not acceptable. 

Claims can describe various types of inventions or embodiments of the same invention. The most common types of claims are product claims and process claims. Product claims confer protection over any aspects of a product specified, regardless of how that product was derived. Process claims describe a particular means of making a product, and it is the described process that is granted patent protection. Also relevant for biotechnology patents are Markush claims, which are used where embodiments of the invention can include a class of compounds (e.g., chemicals or DNA sequences). By opting to use a Markush claim, the applicant need not spell out every possible combination individually, instead he can claim a range of products that may be used in an embodiment of the invention. This range is compiled on the basis of a limited number of representative samples. 

Humans possess rich repositories of odors, one of which, the axillae, has been implicated as the source of semiochemical information. There is, however, no substantial body of evidence to allow one to conclude that releaser-pheromone effects can be ascribed to human odors. While there has been, and undoubtedly will continue to be, a stream of products claiming to use sex attractants and behavior modifiers isolated from humans, the absence of experimental data backing the efficacy of the claims may also be a trademark. Evidence addressing product efficacy may be presented in the form of personal testimonials, magazine/newspaper advertisements or the discoverer s appearance on a T.V. talk-show. Where data on such discoveries has appeared in patents, e.g., the copulin mixture, it can be subjected to an experimental protocol to determine validity. Eventually this will occur with other compounds claimed to be human pheromones and packaged for consumer-purchase caveat emptor). 

Only in 1970, John E. Franz at Monsanto observed its outstanding herbi-cidal activity (Fig. 8.11). Monsanto registered the use of substance CP67573 worldwide as a herbicide, without however being able to claim patent protection of the compound itself ( composition of matter ). It is remarkable that Henri Martin s substance was developed as a commercial product without any structural modification. 

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