A patentee who wishes to complain of dealings in a product made by his patented process must rely on his process claim and article 64(2). The United Kingdom is the only Member State of the EPC which accepted product-by-process claims. The EPO will only accept a claim to a product defined in terms of its process of manufacture when the product is new in the sense of being different from any existing product in the state of the art but the difference cannot be described in chemical or physical terms: ‘This may well be the only way to define certain natural products or macromolecular materials of unidentified or complex composition which have not yet been defined structurally.’
 OJ EPO 309
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.218805