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Product-By-Process Claims: A Jurisdictional Comparison

By Bill Bennett of Pizzeys Patent & Trade Mark Attorneys and Nick Finnie of Pizzeys Patent & Trade Mark Attorneys

Mr. Bennett may be reached via email at
Dr. Finnie may be reached via email at


In most jurisdictions, process claims are deemed to also cover the product that has been made by the claimed process1.  This provides an important means of protection where there are no claims to the product, per se, where the claimed process is performed outside of the patent jurisdiction, and the resulting product is imported into the patent jurisdiction.

Further, where the product of the claimed process is novel, some jurisdictions create a statutory presumption that any equivalent product is presumed to have been produced by the claimed process in the absence of evidence to the contrary2.  This reduces the evidentiary burden upon the patentee when asserting a process claim, particularly in jurisdictions where discovery is limited.

Of course, if the product of the process is novel and inventive, then it is desirable to pursue claims directed to the product, per se.  However, in some circumstances, particularly in the chemical and life sciences, it is difficult or imp...

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