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At the EPO we many times claim devices or methods that comprise in some way a device previously claimed, e.g.:

  1. A tyre for a car comprising: A and B.
  2. A car comprising a tyre according to claim 1.
  3. The car of claim 2, further comprising C.
  4. A method comprising: providing a tyre according to claim 1, and D.

Two independent claims of the same category are usually forbidden at the EPO, but claims 2-3 for instance would not be forbidden because it is a dependent claim, not an independent claim.

Is this way of claiming allowable in the US? If yes, will claims 1-4 be counted as three independent claims or just one?

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I see 2 and 3 as dependent claims because they include all the limitations of claim 1 plus narrowing elements Even though they are not expressed in a more usual format.

I’m not sure this is definitive but since 4 is in a different statutory class from claim 1 I do not see it as dependent. I would analyze a dependent claim but re-writing it as independent, with all references claims written out.

Since one claim can’t be directed simultaneously to a physical thing (system, machine, item of manufacture) and to a method that exercise can’t produce a valid claim.

That argues 4 is an independent claim that references 1 for convenience of not writing out the definition of the tyre again rather than to be a narrower if of one.

The only mention I found so far to mixed-class claims referencing is this PatentlyO article. https://patentlyo.com/patent/2014/02/broader-dependent-claims.html. It addresses the opposite case without any conclusion that I saw.

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    The different type of dependence in claims 2 and 3 made me wonder whether they would be considered dependent claims or not. The fact that the claims include all the limitations is what makes it in fact dependent. And thanks for the additional remarks about claim 4, that is indeed a peculiar claim and to the extent possible it should be drafted as you propose. It is good to know that product-by-process claims as in the case you refer to could be accepted by the USPTO. Oct 16, 2022 at 9:24

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