How is patentability determined for Product-by-Process claims?

Product-by-Process claims focus on a product that is defined in terms of the process by which it is made. The determination of patentability for these claims primarily hinges on the characteristics and properties of the product itself, rather than solely on the process used to create it.

In essence, a product-by-process claim will be evaluated based on whether the product has novelty (is new), is non-obvious, and is adequately described and enabled, according to the requirements set forth by patent law. The process aspect provides context and may illustrate how the product is made, but the fundamental analysis will center around the inherent attributes of the product and its distinguishability from prior art.

To consider the other contexts: focusing solely on the newness of the process or comparing it to similar processes do not fully address the patentability assessment, as the characteristics of the product must ultimately meet the statutory requirements. Evaluating the inventor's claims is part of the examination process, but it does not dictate patentability in the same way as the actual properties and referable characteristics of the product itself do. Hence, the crucial aspect involves assessing the product directly.