Korean Supreme Court Sets New Standard for Claim Construction of Product-by-Process Claims

摘要

The Korean Supreme Court has ruled that the patentability of product-by-process claims will be based solely upon the product itself, in which the structure or characteristics/property of the product is specified by the claim limitations including the process to make the product (Case No. 2011 Hu 927, January 22, 2015, En Banc Decision). Prior to this decision, Korean Supreme Court precedent has held that the inventiveness of product-by process claims should be determined based on the product claimed over prior art without considering the process, unless the claimed product can only be defined by the process steps by which the product is made, or where the process steps can impart distinctive structural characteristics of the product (see Case No. 2004 Hu 3416, June 29, 2006, Korean Supreme Court).