If the product in the 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) (internal citations omitted). Taking all the evidence together, the manufacturing process disclosed in the ‘495 Patent appears to yield a product with the Six-Month Erucic Acid that is obvious from the six-month erucic acid range disclosed by the prior product.

Biogen argues that Amgen is limited to composition claims and is not applicable to the method of treatment claims at issue here. To support this proposition, Biogen relies on general statements in product-by-process cases such as In re Thorpe , 777 F.2d 695, 697 (Fed. Cir. 1985) (applying product-by-process analysis for "an otherwise patentable product ") (emphasis added), and the well-recognized distinction patent law draws between the scope of composition and method of treatment claims. See, e.g. , Ass'n for Molecular Pathology v. Myriad Genetics, Inc. , 569 U.S. 576, 595, 133 S.Ct. 2107, 186 L.Ed.2d 124 (2013) (recognizing the distinct scope for composition and method of treatment claims in the context of 35 U.S.C. § 101 ).

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, 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."