PCT AG-IP 5.121 Can both intermediate and final products be claimed?

5.121.   Can both intermediate and final products be claimed?  The situation involving intermediate and final products is also governed by Rule 13.2.  The term “intermediate” is intended to mean intermediate or starting products.  Such products have the ability to be used to produce final products through a physical or chemical change in which the intermediate loses its identity.  Unity of invention should be considered to be present in the context of intermediate and final products where the following two conditions are fulfilled:

(i)  the intermediate and final products have the same essential structural element, in that:

(a) the basic chemical structures of the intermediate and the final products are the same, or

(b) the chemical structures of the two products are technically closely interrelated, the intermediate incorporating an essential structural element into the final product, and

(ii)  the intermediate and final products are technically interrelated, this meaning that the final product is manufactured directly from the intermediate or is separated from it by a small number of intermediates all containing the same essential structural element.

5.122.   Unity of invention may also be considered to be present between intermediate and final products of which the structures are not known – for example, as between an intermediate having a known structure and a final product the structure of which is not known, or as between an intermediate of unknown structure and a final product of unknown structure.  In order to satisfy unity in such cases, there must be sufficient evidence to lead one to conclude that the intermediate and final products are technically closely interrelated as, for example, when the intermediate contains the same essential element as the final product or incorporates an essential element into the final product.

Article 2(x)
Rule 13

5.123.   An international application which complies with the unity of invention requirements laid down in Rule 13 must be accepted by all the designated and elected Offices, since Article 27(1) does not allow any national law (as defined in Article 2(x)) to require compliance with requirements relating to the contents of the international application different from or additional to those provided for in the PCT.

Source: http://www.wipo.int/pct/en/appguide/text.jsp?page=ip05.html

Date retrieved: 02 November 2015

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