Indeed, this court itself had articulated that rule: "For this reason, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself." In re Thorpe, 177 F.2d 695, 697 (Fed. Cir. 1985) (emphasis added).

For the purposes of validity, the Court considers only the product limitations of a claim, not process limitations or source limitations that add no patentable significance to the end product. See In re Thorpe, 777 F.2d 695, 697 (Fed.Cir.1985). The asserted claims of the '799, '072, and '800 Patents are product-byprocess claims.

” Id.;see alsoSmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1317 (Fed.Cir.2006) (“It has long been established that one cannot avoid anticipation by an earlier product disclosure by claiming ... the product as produced by a particular process.”); In re Thorpe, 777 F.2d 695, 697 (Fed.Cir.1985) (“If the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.”).Purdue looks to the exception we carved out in Amgen: “if the process by which a product is made imparts ‘structural and functional differences' distinguishing the claimed product from the prior art, then those differences ‘are relevant as evidence of no anticipation’ although they ‘are not explicitly part of the claim.’ ”

As a result, "[i]f the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985). However, if the process limitations impart "structural and functional differences" to the product, converting the product into something that is actually "new," the structural and functional differences are relevant to the analysis even when they are "not explicitly part of the claim[s]."

Vanguard Prods. Corp. v. Parker Hannifin Corp., 234 F.3d 1370, 1372 (Fed. Cir. 2000). See also In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985) ("The patentability of a product does not depend on its method of production. If the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.")

In Scripps, 927 F.2d at 1583, the Federal Circuit held that "the correct reading of product-by-process claims is that they are not limited to product prepared by the process set forth in the claims."See also In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985) ("The patentability of a product does not depend on its method of production. If the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.") A different panel of the Federal Circuit decided Atlantic Thermoplastics Co. v. Faytex Corp., 970 F.2d 834 (Fed. Cir. 1992), approximately a year after the Scripps decision and explicitly declined to follow Scripps, holding that process terms in product-by-process claims do serve as limitations in determining infringement. Under Federal Circuit law, "where there are conflicting precedents, the earlier precedent controls."

In Scripps Clinic Research Found. v. Grenentech, the Federal Circuit held that "[s]ince claims must be construed the same way for validity and for infringement, the correct reading of product-by-process claims is that they are not limited to product prepared by the process set forth in the claims." 927 F.2d 1565, 1583 (Fed. Cir. 1991) (citing In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985)). The following year, a different panel of the Federal Circuit decided Atlantic Thermoplastics Co., Inc. v. Faytex Corp., 970 F.2d 834 (Fed. Cir. 1992), reh'g en banc denied, 974 F.2d 1299.

In Scripps, 927 F.2d at 1583, the Federal Circuit held that "the correct reading of product-by-process claims is that they are not limited to product prepared by the process set forth in the claims."See also In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985) ("The patentability of a product does not depend on its method of production. If the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.") A different panel of the Federal Circuit decided Atlantic Thermoplastics Co. v. Faytex Corp., 970 F.2d 834 (Fed. Cir. 1992), approximately a year after the Scripps decision and explicitly declined to follow Scripps, holding that process terms in product-by-process claims do serve as limitations in determining infringement. Under Federal Circuit law, "where there are conflicting precedents, the earlier precedent controls."