Journal of Intellectual Property (J Intellect Property; JIP)

KCI Indexed
OPEN ACCESS, PEER REVIEWED

pISSN 1975-5945
eISSN 2733-8487
Research Article

A Study on the Clarity and Scope of Product-by-Process Claims

Representative, KEYSTONE IP; Master’s Candidate, Department of Law, Seoul National University Graduate School, Republic of Korea

Correspondence to Kiseok Hong, E-mail: ghdrltjr10@naver.com

Volume 20, Number 4, Pages 59-85, December 2025.
Journal of Intellectual Property 2025;20(4):59-85. https://doi.org/10.34122/jip.2025.20.4.59
Received on October 05, 2025, Revised on October 10, 2025, Accepted on December 03, 2025, Published on December 30, 2025.
Copyright © 2025 Korea Institute of Intellectual Property.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives (https://creativecommons.org/licenses/by-nc-nd/4.0/) which permits use, distribution and reproduction in any medium, provided that the article is properly cited, the use is non-commercial and no modifications or adaptations are made.

Abstract

Product-by-Process (PBP) claims define a product by its method of manufacture, distinguishing them from standard claim formats. In 2011Hu927, the Korean Supreme Court adopted the product-per-se approach regardless of whether the claim was “true”or “pseudo.”In 2013Hu1726, the Court reaffirmed this as the principle for determining claim scope, while allowing an exception in cases of “manifestly unreasonable circumstances.”However, the exact meaning of such circumstances remains debated. This article reviews Korean jurisprudence and compares it with Japan, the EPO, and the United States. It proposes that clarity should be assessed by whether a person skilled in the art, considering the specification, drawings, and common knowledge at the filing date, can clearly identify the product defined by the process. For claim scope, the product-per-se rule should remain the principle, but when a limitation is necessary, the restriction should apply to the structure or properties defined by the process, not the process itself. This approach aims to ensure both doctrinal consistency and practical operability of the product-per-se principle maintained by the Korean Supreme Court.

Keywords

Product-by-Process claims, PBP claims, Patent, Product-per-se Approach, product identity theory

Notes

Conflicts of Interest

No potential conflict of interest relevant to this article was reported.

Funding

The author received manuscript fees for this article from Korea Institute of Intellectual Property.

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