What is a process under United States patent law?

For a patent application to be granted in the United States the subject of the patent application must fall into at least one of the principle categories of subject matter eligible for a patent. The four principal categories are a process (also termed a method), a machine, an article of manufacture and a composition of matter.

In this article we will explore how United States patent law defines a process.

35 U.S.C. 100(b) states that the term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material. Frequently the terms process and method are used interchangeably. However, the term method is typically used to refer to a way to use a product to accomplish a given result, and the term process is usually used to refer to a series of steps in manufacture.

Process patents can allow a company to protect a new way to produce a product, even if the product itself cannot be patented. This can be useful when a company invents a new process which gives it a competitive advantage in the market place, such as a lower cost production process or a faster way to perform a process.

Some examples of processes that could be patented are:

A method of cooling electronics;
A process to produce chop sticks;
A process to produce concrete;
A method to clean eye glasses; or
A process to sterilize medical equipment.

The key thing that distinguishes a process patent from other types of patents is that a process patent is a series of steps that are performed to produce an end result. A process must be carried out or performed. A process patent consists of acts or steps, rather than tangible things. To infringe a process patent all of the steps must be performed. If one of the steps claimed in a process patent is not performed then the process patent is not infringed. The sale of a device that performs all of the steps of a process patent does not necessarily infringe on a process patent, however using the device to perform the steps would infringe on the process patent.

Performing the all steps claimed in a process patent in an order different than the process claimed in the patent may infringe on the process patent. Adding steps to a process claimed in a patent may also infringe on the patent. In the case of changing the order of steps performed and adding steps to the process, an in depth analysis of the process claimed in the patent must be performed because the answer lies in how the process patent claims are constructed.

In the past, a process patent could only be infringed when a single entity performed all the steps of the process patent. If two different parties performed different steps of a patented process it was difficult to prove infringement. Recent case law has changed how the courts will treat the situation when two actors are working together to perform parts of a process. In Akamai Techs., Inc. v. Limelight Networks, Inc., Akami held a patent on a process for content distribution on the internet. In 2006 Akami sued Limelight claiming that Limelight’s method of content distribution infringed on Akami’s patent. Limelight asserted that it did not infringe on Akami’s patent becasue some of the steps of the process were performed by Limelight’s customers and not Limelight itself. Limelight asserted that because it was not performing all of the steps of the proces claimed by Akami, it was not infringing not Akami’s patent. After almost a decade of litigation the Federal Circuit court held that Limelight did infringe on Akami’s patent. The court held that because Limelight directed and controlled the actions of Limelight’s customers, Limelight was liable to Akami for patent infringement.

Filing for a patent is a complex process and should be done with the assistance of an experienced patent attorney. If you have questions about filing for a process patent or questions about process patent infringement it is best to consult with an experienced patent attorney.