*What is the function of a method limitation in a product-by-process claim?

As described above, a method limitation in a product claim will conventionally carry no weight in patentability evaluation thereof.  Nevertheless, this might be not the case any more when a product-by-process claim rather than a product claim is involved in.  Before we could go further in this respect, it might be very helpful for us to refer to the following precedents:

1.      It is usually insufficient for patentability that the article is manufactured by a novel or unobvious method. In re Pilkington, 162 USPQ 145 (CCPA 1969)  Accordingly, we could know:

A.     In a product-by-process claim, a novel or unobvious method limitation is not critical to the patentability thereof even if the method limitation per se has been patentable;

B.     Although a lot of people might have been frustrated by this precedent, they should be cheered up again since the precedent is saying that if the method limitation per se is patentable, it should be sought patented in a separate method claim rather a product-by-process claim in order to safeguard the utmost patent rights of the inventor(s) and/or the applicant(s);

C.     Since a product-by-process claim is a special kind of product claim, the patentability thereof should be solely decided by the product per se rather than the method limitation; and

D.     Since what is important is the product in a product-by-process claim, it is not necessitated that the method limitation per se must be novel or unobvious in order to make the product-by-process claim patentable.

2.      But the development of a new process, especially in the face of previous unsuccessful efforts by others, is evidence of non-obviousness of the product eventually developed. Phillips Petroleum Co. v. US Steel Corp., 6 USPQ.2d 1065, 1096 (D. Del. 1987)  Accordingly, we will know:

A.     Although a new process in a product-by-process claim cannot guarantee the claim to be patentable, it is a kind of evidence about the non-obviousness of the product eventually developed therefrom;

B.     The weight for evidence in proving patentability for the product developed from a new process will be reinforced if there are previous unsuccessful efforts by others either in procedures of producing the product or in structures in forming the product.

3.      Although the existence of an old or obvious method of producing an article does not necessarily negate the article’s patentability, such a method is a factor to be considered along with similarities in and differences between the structure and properties of the article and the prior art. In re Lewis. 172 USPQ 238 (CCPA 1972) Accordingly, we could know that:

A.     The existence of an old or obvious method for producing an article normally makes it difficult that the article itself can be patented again in the form of a product-by-process claim although unnecessary;

B.     Upon examining the patentability of a product-by-process claim, an old or obvious method for producing an article needs be taken into consideration;

C.     Upon evaluating the patentability of the article of the product-by-process claim, we need to consider inter alia:

a.       Features, e.g. structure, properties… of the article and the prior art; and

b.      Factors, e.g. similarities in, differences between the article and the prior art.

Accordingly, the function of a method limitation in a product-by-process includes:

1.      Possibly helping build the patentability of the article in a product-by-process claim;

2.      Specifically, if it is new, especially in the face of previous unsuccessful efforts by others, being evidence of non-obviousness of the product eventually developed;

3.      Serving as a basis to compare with an existent old or obvious method of producing the article in issue to prove similarities in and/or differences between the structure and properties of the relevant article and the prior art.

*Whether it is good to liberalize the definition, the use opportunity and the examination of the product-by-process claim?

In T150/82-3.3.1 Case, the European Patent Office has declared that for product-by-process claims to be patentable, there must be two requirements, i.e.:

1.      The products themselves fulfill the requirements for patentability; and

2.      There is no other information available in the application which could enable the applicant to define the product satisfactorily by reference to its composition, structure or some other testable parameter. 

The above first requirement can be further substantiated under the US practice that the critical issue for the product-by-process claim is that “it is the patentability of the product claimed and not of the recited process steps which must be established.”  It might be natural that literally, a product-by-process will represent what is involved in is a product, which, however, is in part or in whole defined by a process.  Under such understanding, it will be no longer strange for us to believe that the sole or primary role in a product-by-process patent is a product.  Now that it is clear that the subject in a product-by-process patent is a product, it is compulsory that the patentability of a product-by-process claim is established through the involved product rather than the relevant process.

Nevertheless, there is a subtle mystification here that although the patentability of a product-by-process claim is established through the product rather than the involved method step therein, it does not mean that the resulting product must be physically different from the prior one since if this is the case, the product itself might have been able to be defined patentable over the prior art without the involvement of a product-by-process style.  Specifically, as long as the resulting product bears patentable advantages over the prior one, the required patentability for a product-by-process claim has been established regardless of whether the resulting product is really different from the prior art, either physically or otherwise.

It might be fascinating for us to carefully analyze the second requirement disclosed above that ‘there is no other information available in the application which could enable the applicant to define the product satisfactorily by reference to its composition, structure or some other testable parameter’ as follows:

1.      No “other” information: Except the ‘process’ feature and/or limitation included in the claim, there is no other information which could enable the applicant to define the product satisfactorily;

2.      Satisfactorily: As is known, the major role of a product-by-process claim is the product per se.  The criteria for determining whether the product has been satisfactorily defined must be whether the patentability of the product-by-process claim has been substantiated through the recitation of limitations or features of the claim so that its distinction over or differentiation from the prior art has been desiredly shown.  Since a product-by-process claim is one which cannot be patentably defined either by the product per se or the process per se, it is clear that the required satisfaction can only be achieved through both product and process feathers/limitations through which the product-by-process product has been exactly presented;

3.      Available in the application: As we know, a specification shall be enabling and clear enough so that one skilled in the art can practice the invention thereby.  Although there is a room for us to interpret this requirement that what is determining is what is disclosed in the specification or the application rather than whether there is enough information in the specification or application available for defining the product-by-process claim.  It should, however, be easy for us to reason that such interpretation is unconvincing since an enabling or clear enough disclosure is the basic spirit for maintaining the patent system; and

4.      Composition, structure or some other testable parameter: In as much as the real role of the product-by-process claim is a product, which can be defined by its composition, structure or some other testable parameter as a product can exhibit or have.  Through the above subtle mystification inter alia, we have known that the resulting product of a product-by-process claim normally does not have distinctions or differences from the prior one in composition, structure or some other testable parameter, which necessitates the method step limitation/feature in final recitation of the product-by-process claim.

As to whether it is good to liberalize the definition, the use opportunity and the examination of the product-by-process claim, this is not an easy question to answer since:

1.      It gets popular and popular for us to find a mixed or hybrid claim.  If such mixed or hybrid claim will become generally acceptable, it seems unnecessary to liberalize the use restriction of the product-by-process claim since as an acceptable claim, it might be unimportant for it to be named as a mixed/hybrid claim or a product-by-process claim;

2.      Even if the mixed/hybrid claim has become generally acceptable, we will find that we need to keep strict the definition of the product-by-process claim in order to delimit an area into which a special type of claim will be so categorized;

3.      Accordingly, the issue as to whether the definition of a product-by-process should be liberalized might be left until the time when we ban the use of the mixed/hybrid claim, which, however, appears to never come in this era of freedom.

*Should we allow mixed claims having both product and process components incapable of satisfying requirements of a typical product-by-process claim?

As above-described, under the European patent practice, a product-by-process claim is allowable provided the products themselves fulfill the requirements for patentability, and under the US patent practice, a product-by-process claim is regarded as a product, which must be patentable by itself.  What do such practices mean thereby?  As above-described, the judging standards for determining whether or not a product-by-process claim is patentable will be stipulated for the product.  Nevertheless, this never means that a product from a product-by-process claim, which is the same in appearance with the prior art one is not patentable.  Although we always define a product through its structure, composition or other testable parameter, the clause ‘in appearance’ here does not necessarily mean that although a product from a product-by-process claim is the same with the prior one in appearance, respective ones of their structures, compositions or other testable parameters are different.  In other words, even if no difference between structures, compositions or other testable parameters of a product in a product-by-process claim and the prior product can be found, this will never mean that the involved product-by-process claim is unpatentable. 

We certainly know it is funny to ask or consider the issue as to whether we should allow mixed claims having both product and process components incapable of satisfying requirements of a typical product-by-process claim since the current truth all over the world is that a lot of mixed/hybrid claims containing therein both product and process features/limitations has been extensively allowed patented in a great number of countries all over the world without bothering efforts through resorting to study the following issues:

1.      Whether or not a mixed/hybrid claim is certainly patentable as long as an applicant asserts that a claim containing therein both product and process features/limitations is not a product-by-process claim so that the requirements of a product-by-process are inapplicable here?

2.      If the above is the case, whether there is any applicant who would like to seek patented a claim containing both product and process features/limitations but still declares that the claim is a product-by-process claim which should be examined under standards or criteria thereof?

3.      If the above in the positive way is the case, who is the judge to determine whether a claim is a product-by-process claim or a mixed/hybrid claim?

4.      If the above difficulty is resolved, what are the requirements under which a mixed/hybrid claim should be examined?  Shall they be similar to those for a product or for a process?

5.      If the above choice is wisely made, what kinds of standards or criteria like or similar to those of a product-by-process shall be brought forth?

Although we are worrying here about all of the above issues and their potential answers, this interesting and funny world never withholds its pace toward the one which it is heading forth. 

It would be better for us to clarify our stand again in order to secure what we are discussing is not distracting from the right road.  Specifically, there are the following kinds of mixed/hybrid claims, i.e. the embarrassing type, the riding-out type, the confusing type and the stealthy type, in our mind forming bases for our discussions in this article:

1.      The embarrassing category: For example, a product produced through a method as claimed in Claim X.  Let us sub-divide this category into the following:

A.      Product-by-process type: This situation is rarely declared either by the applicant or the examiner;

B.      Statutory type: Since a method claim statutorily gains the protection for a product produced therefrom, the examiner might feel boring or unnecessary to reject such a claim.  It is further believed that it is seldom for an examiner to consider whether such a claim is patentable under the patent law before he/she makes a decision or action to allow such claim;

2.      The riding-out category: For example, a product according to Claim Y wherein said element is produced by Z method.  Let us further sub-divide this category into the following two types:

A.      Product-by-process type: Some examiners will regard such claim as a product-by-process claim so that it is unpatentable;

B.      Regular riding-out type: If a main product claim has been determined to be patentable, most of examiners will feel tired or forget to reject such claim as a product-by-process claim since it is well-established in the patent field that if an independent claim has been patentable, its dependent claim must be patentable too;

3.      The confusing category: For example, a product produced by a process including the following steps N ~ P.  Let us sub-divide this category into the following two types:

A.      Product-by-process type: Few applicants or examiners will regard this claim as a product-by-process claim for examination; and

B.      Regular confusing type: Such claim generally appears when a patentable method has been put in an independent claim.  Likewise, since the steps N ~ P really represent a patentable claim, the examiner might feel eventually sorry if he/she rejects such claim since the applicant gains nothing more than what the independent method claim can already reap through inclusion of such additional claim; and

4.      The stealthy category: For example, a product comprising an element A, an element B connected to said element A, an element C fixed to said element B and produced by a method D, and an element E connected to said element C.  Let us sub-divide this category into the following two types:

A.      Regular product-by-process type: There are not many an applicants who can discern the solemnity of such a product-by-process claim nowadays.  Nevertheless, an examiner in any of various countries can generally recognize such type for rejection; and

B.      Stealthy type: It is uneasy for an applicant to steal an allowable claim through such type publicly so that such claim should theoretically be unpatentable.  If, however, an applicant steals from the official examination to seek patented such claim, should it be cancelled or should it be regarded as a mixed/hybrid claim eventually?

Specifically, as mentioned above, it should have been clear that the mixed/hybrid claim has been repetitively allowed in various countries by a great deal of examiners who are believed to allow such kind of claim without being puzzled by the issues disclosed above and considerations above-described.  It is further believed that upon examination, quite a lot of all these examiners allow the above-mentioned might-be problematic mixed/hybrid claims without due studies and considerations to the issues and considerations presented above.  Since such situation happens more than often in various major countries, we do not know what to do now since we would like to negatively answer the question, “should we allow mixed claims having both product and process components incapable of satisfying requirements of a typical product-by-process claim?”

*Does EPO err in construing a product-by-process claim somehow?

As set forth in Item 8 of the Reasons for Decision of the above-captioned Case that “the Guidelines for Examination in the EPO (C-III 4.7b) allows claims for products defined in terms of a process of manufacture provided the products themselves fulfill the requirements for patentability.  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…”  After known to the base we pose our question above through the revelation of the above Item, it might be possible that we are exaggerating the atmosphere here since:

1.      From the former half of the above paragraph quoted from this Item, which correctly defines what a product-by-process is, we cannot determine by basing on the illustration mentioned in the latter half of the above paragraph therefrom since the illustration is only an example; and

2.      Although a natural product or macromolecular material which has not yet been defined structurally could otherwise be defined, e.g. by NMR (nuclear magnetic resonance), it is hard for us to allege that the EPO had inappropriately exemplified that “this may well be the only way to define certain natural products or macromolecular materials, of unidentified or complex composition.

Accordingly, the EPO will err only when it believes that the product for a patentable product-by-process is limited to natural products or macromolecular materials, which have not yet been defined structurally.  If there is any one who is interested in knowing whether the EPO did err in reasons for the above case, it is believed that the EPO is open to provide its answer upon being questioned.

*Is a claim in a mixed or hybrid claim having either the product component or the process component capable of satisfying patentable requirements patentable?

As above-described, in Chapter III, Section 4.7b, the Guidelines for Examination in the EPO stipulates that “a product is not rendered novel merely by the fact that it is produced by means of a new process.”  It appears that we have made it clear through the above discussions that such stipulation should be readily acceptable in a product-by-process claim.  From the preceding relevant paragraphs, we should also have made it clear that this world has been shaped somehow naturally that a mixed/hybrid claim is acceptable in which either its product component or its process component being patentable is enough to make the mixed/hybrid claim patentable, subject to the prerequisite that we accept that a mixed/hybrid claim is patentable.

Before we can overrule or effectively ban the patentability of a mixed/hybrid claim or we can determine whether a mixed/hybrid claim should be regarded patentable, it might be helpful for us to briefly review the patentable requirements of a product or a process claim.  Just like what the EPO has stipulated in the above that “a product is not rendered novel merely by the fact that it is produced by means of a new process,” in the very beginning of the patent practices either officially or in the patent-practicing society, it is generally taken that a method claim in a normal case is patentable only when the steps per se rather than the starting material or the end product are patentable.  Specifically, in a product claim, a process limitation will not play a role in evaluating whether the involved product is patentable.  By the same token, in a process claim, a product limitation will not play a weight in gaining patentability for the process claim conventionally.

The above standards for determining the patentability of a product or process claim have set forth criteria ruling the patent world for quite a long time until the mixed/hybrid claim became patentable not so many year ago.  Specifically, in a product claim, a patentable process limitation therein will not make this product claim patentable without a patentable product feature therein.  Likewise, in a process claim, a patentable product feature therein will not make such process claim patentable without a patentable process limitation recited therein.

The orderly world in the above manner changes when a mixed/hybrid claim became patentable.  Again, we are not sure whether we are exaggerating the situation here since among the above-disclosed categories and/or types, for the relevant product claim or process claim, either the involved product component or the relevant process component itself has been patentable regardless whether a possibly alien process limitation or an alien product feature is recited in the involved claim so that it would appear that it is unimportant for us to accept such mixed/hybrid claim since except the stealthy type, in all claims of other types, there already is a unique feature which is patentable per se even if the potentially conflicting component in its primitive nature were withdrawn therefrom.

Nevertheless, thinking of the matter otherwise, if we can bear that a product (or process) claim in all the mixed/hybrid types can be patentable due to the distinguishing features presented by the process (product) component recited therein, what are our bases for rejecting the acceptability of the stealthy type claim or what are our underlying principles to uphold beliefs that the rules of product-by-process claim must be strictly followed while all the mixed/hybrid types except the stealthy type can be patentable?

*Can a product claim allow inclusion of method limitation therein?

Before we can answer the above question, it might be helpful for us to get known to the following two precedents, i.e.:

1.      The mere presence of a method limitation in an article claim which is otherwise allowable would not so poison the claim as to render it unpatentable. Ex parte Lindberg, 157 USPQ 606, 607 (BOP 1967); and

2.      The addition of a method step in a product claim, which product is not patentably distinguishable from the prior art, cannot impart patentability to the old product. Tri-Wall Containers, Inc. v. US, 161 USPQ 116.

From the above cases, we can abstract the following ideas and teachings by the precedents, as partly having been clarified through the above discussions:

1.      Although a method limitation cannot help build the patentability of a product claim, it is not poisonous to a product claim;

2.      Since the patentability of a product-by-process claim can only built by the product per se, regardless of whether prominent or not, a method limitation will never help tip the scale in favor of the applicant in a critical case or situation;

3.      By the sentence that a method limitation is not poisonous to a product-by-process claim is meant that the appearance of a method limitation in a product-by-process claim will neither make inferior the patentable weight of such claim, nor prevent such claim from being sought patented; and

4.      Accordingly, if the product or the product component in a product-by-process claim is not patentably distinguishable from the prior art, the addition of a method step therein, no matter how it is wonderful or of enough patentability, cannot make the examiner to changer his/her mind that such product-by-process claim is patentable.

As such, we have known that a method limitation will carry or bring forth no patentable weight in a product claim.  All applicants should be advised not to engage a method limitation in a product claim since they will gain no benefits thereby.  Nevertheless, there comes a problem that if an applicant has put in a product claim a method limitation to be eventually allowed, shall the applicant or the patent be subject to the limitation of the method limitation upon enforcing the patent rights.  Theoretically, there are two apparent ways or answers to solve this question, i.e.:

1.      Yes: As is known from the very beginning, since we have named the method limitation as a kind of limitation, which has been known to all people in the patent society, how the applicant can escape or avoid from the restriction of such feature/limitation in the claim; or

2.      No: In as much as such method limitation plays no positive role or takes no weight in evaluating the patentability of a product-by-product claim, it would be unfair and inappropriate for us to allege that the applicant shall subject to such unfavorable disadvantages that the method limitation shall become interpreted into the limitative protecting scope of the relevant claim even we have known and determined that such method limitation cannot impart to the applicant any kind of benefits.

Although we do not know which one is better, it appears that the first alternative is easier to be accepted by the patent practitioner.  As a result, a method limitation will never have any benefits to the applicant but will only provide disaster to the applicant or the patentee.

*Is a method-related adjective presenting a method limitation?

As in the same way for answering the preceding question, before we provide our opinions for this question, it should be helpful for us to review what the court has set forth previously in the following case.

The recitation of the particles as “interbonded one to another by interfusion between the surfaces of the perlite particles” is as capable of being construed as a structural limitation as “intermixed,” “ground in place,” “press fitted,” etched,” and “welded,” all of which at one time or another have been separately held capable of construction as structural, rather than process, limitations. In re Garnero, 162 USPQ 221, 223 (CCPA 1969)

From the above reasons, it appears that it might be well-established that the terms “interbonded,” “intermixed,” “ground in place,” “press fitted,” “etched,” and “welded” are describing various states in which the relevant structure or material is considered structurally formed, shaped, arranged or configured in the relevant product.  Nevertheless, we would like to comment as follows:

1.      It is believed that the former two exemplary terms, i.e. “interbonded” and “intermixed” describe the internal relationship between physical molecules or elements so that their structural features have been presented thereby;

2.      The latter three exemplary terms, i.e. “press fitted,” “etched” and “welded,” however, enlighten the possibility or open an opening through which an applicant might try to seek patented its product claim through a quasi-method limitation.  Specifically, the phrase “press fitted” means two things are held together through a press-fit where two things being held together is a structural feature/limitation, which is very much related to a press-fitted method if the patentable critical key of the involved product claim is resided in that said two things are creatively held together by a press-fit although the prior art has shown that said two things are held together.  Likewise, in the case of “etched” or “welded,” the reason causing the situation being patentable through the use of such words must be that by the previous involvement of the specific process, e.g. the etching or welding process, the element or product resulting therefrom presents the patentability of the product claim so that such patentability is closely related to pre-treated procedure;

3.      Accordingly, a method-related adjective needs not be a method limitation, but instead can be a product limitation, subject to whether or not such adjective imparts a patentable structural feature/limitation to the involved element or product; and

4.      It appears from the above illustrations that all allowable method-related adjectives are in the past tense, which seems to be suggestible as follows:

A.     If an applicant considers or doubts whether a method-related limitation has the potential weight in resulting in a product or structural feature, such limitation should be put in a past tense adjective rather than a gerund form since it would appear that the latter form will be immediately recognized as a banned process limitation;

B.     The philosophy of adopting such method-related adjective in the past tense might be that the element is a structure having been duly treated without physically involving a step.  Accordingly, it shall be helpful in constructing the patentability in the situation that in addition to the usage of such adjective, we stress in the specification that the element or the final product will bear what kinds of structural features compared to those of the prior ones.

Claims We Have

1.      Since the product-by-process claim will subject to double limitations as to the product component and the process component, it might be advisable that such product-by-process claim shall only be applicable or adoptable when:

A)    An invention cannot be soundly protected either by the product claim or the process claim;

B)     An invention cannot be presented either by the product claim or the process claim;

C)    An invention is not allowed to be presented in a product claim or a process claim; or

D)    The applicant wants to soundly or better protect the invention by adding a new claim set under the product-by-process type into the claims.

2.      The sentence that “product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps” means that the import of steps in a product-by-process claim is not the manipulation of the steps per se but the structure implied or to be eventually presented by the steps.

3.      It is unimportant as to how complex the involved composition of a product in the product-by-process claim is since the claim logic per se is a complex but simple one.  Instead, what is taken care is whether it is impossible, hardly possible or nearly impossible to structurally define the concerned product.

4.      It would appear that the solemnity or strictness of a product-by-process has been diluted through the extensive use and acceptance of a mixed claim and more seriously, the product-by-process claim has been getting more and more equalized to a mixed claim.  Nevertheless, it deserves to be discussed in details as to the relationships, differences and consequences between a mixed claim and a product-by-process claim.

5.      Since what is important is the product in a product-by-process claim, it is not necessitated that the method limitation per se must be novel or unobvious in order to make the product-by-process claim patentable.

6.      There is a subtle mystification here that although the patentability of a product-by-process claim is established through the product rather than the involved method step therein, it does not mean that the resulting product must be physically different from the prior one since if this is the case, the product itself might have been able to be defined patentable over the prior art without the involvement of a product-by-process style. 

7.      As long as the resulting product bears patentable advantages over the prior one, the required patentability of for a product-by-process claim has been established regardless of whether the resulting product is really different from the prior art, either physically or otherwise.

8.      If such mixed or hybrid claim will become generally acceptable, it seems unnecessary to liberalize the use restriction of the product-by-process claim since as an acceptable claim, it might be unimportant for it to be named as a mixed/hybrid claim or a product-by-process claim.

9.      It would appear that there are four kinds of mixed/hybrid claims, i.e. the embarrassing type, the riding-out type, the confusing type and the stealthy type.

10.  It is further believed that upon examination, quite a lot of examiners allow the might-be problematic mixed/hybrid claims without due studies and considerations to the relevant issues and considerations.  Since such situation happens more than often in various major countries, we do not know what to do now since we would like to negatively answer the question, “should we allow mixed claims having both product and process components incapable of satisfying requirements of a typical product-by-process claim?”

11.  We are not sure whether we are exaggerating the situation here since among the above-disclosed categories and/or types, for the relevant product claim or process claim, either the involved product component or the relevant process component itself has been patentable regardless whether a possibly alien process limitation or an alien product feature is recited in the involved claim so that it would appear that it is unimportant for us to accept such mixed/hybrid claim since except the stealthy type, in all claims of other types, there already is a unique feature which is patentable per se even if the potentially conflicting component in its primitive nature were withdrawn therefrom.

12.  Nevertheless, thinking of the matter otherwise, if we can bear that a product (or process) claim in all the mixed/hybrid types can be patentable due to the distinguishing features presented by the process (product) component recited therein, what are our bases for rejecting the acceptability of the stealthy type claim or what are our underlying principles to uphold beliefs that the rules of product-by-process claim must be strictly followed while all the mixed/hybrid types except the stealthy type can be patentable?

13.  Although we do not know what the eventual destination a method limitation will be in a product-by-process claim, at the present stage, we can responsibly assert that a method limitation will never have any benefits to the applicant but will only provide potential disaster to the applicant or the patentee.

14.  Accordingly, a method-related adjective needs not be a method limitation, but instead can be a product limitation, subject to whether or not such adjective imparts a patentable structural feature/limitation to the involved element or product.

15.  If an applicant considers or doubts whether a method-related limitation has the potential weight in resulting in a product or structural feature, such limitation should be put in a past tense adjective rather than a gerund form since it would appear that the latter form will be immediately recognized as a banned process limitation.

The philosophy of adopting such method-related adjective in the past tense might be that the element is a structure having been duly treated without physically involving a step.  Accordingly, it shall be helpful in constructing the patentability in the situation that in addition to the usage of such adjective, we stress in the specification that the element or the final product will bear what kinds of structural features compared to those of the prior ones.