7.4. Applicability of the principles for product-by-process claims to use claims

In T 81/14 the board held that when considering the definition of a product in terms of its production process the principles developed in the jurisprudence for the product-by-process claims are in general to be applied, also in the case of a claim directed to the use of that product. Claim 1-7 of one of the auxiliary requests were directed to a method of producing a sintered cemented carbide body. Claim 8 was directed to the use, for the production of a cutting tool, of a sintered cemented carbide body obtained according to the method of any one of claims 1-7. Hence, claim 8 comprised process and product features and was notionally equivalent to a claim directed to a process for the production of a cutting tool using the sintered cemented carbide body. Although the claim was not directed to a product but to a process, the board stated that the principles underlying the assessment of the clarity of product features should not depend on whether such product features appear in a claim directed to a product or in a claim directed to a process. Applying the principles developed in the jurisprudence for product-by-process claims to claim 8, the board stated it would have been possible to define the sintered body in terms of structural features. Accordingly, the use of a product-by-process definition in claim 8 resulted in a lack of clarity.