Many food products contain known ingredients, rather than
novel ingredients, as essential components. Such food products
are usually a result of combining components in a special ratio
to achieve a particular flavour, taste, effect, etc.
Inventions for food products are commonly drafted as method
or composition claims to secure a patent in Korea. For example,
a method of enhancing the flavour of a food product by
uniformly mixing substance A with sodium glutamate, and a food
composition for lowering blood glucose level comprising
substance A as an active ingredient.
Natural products per se are not patentable because they are
already known in the art and thus lack novelty. However, if one
natural product shows a unique function or effect, a "use
invention" for the natural product may be permitted as a patent
as long as it satisfies the patentability requirements.
When one drafts a patent specification and claims for
food-related inventions, the following should be kept in
Description in the specification and claims
In the specification, it is necessary to describe (i) the
sensory effects of the food (i.e. appearance, taste, smell,
texture, etc.), and/or (ii) functional effects of the food.
The sensory effects must be objectively and scientifically
demonstrated using chemical or mechanical analysis (e.g.
electronic nose, electronic tongue, and texture profile
analyser), a systematic sensory test, etc. Trained panels can
be used for sensory testing to determine people's food
In the case of functional foods, experimental data verifying
the effectiveness or utility should be disclosed in the
specification originally filed, in a similar way to medical use
inventions. Such data can be obtained from in vitro, animal, or
human tests, or a method using a biomarker. Unlike medical use
inventions, qualitative analysis or sensory test results for
food products are acceptable to the Korean Intellectual
Property Office (KIPO).
Claims for functional foods are usually written in the form
of "a food composition for improving or preventing…",
and are not allowed to use the expression "treatment" or
"treating", which indicates medical utility. The use of a food
composition is required for the object achieved by the property
of functional components, such as lowering blood glucose level,
improving obesity, and improving hyperlipidemia.
Overall, it seems that a lower standard for the
specification and claims is applied to food-related inventions
than for medical use inventions.
Trends in patent
application filing for food-related inventions for the last 10
years in Korea
As food is ingested, safety to the human body should not be
overlooked. In a case in which it is not obvious to a person
skilled in the art whether materials or components constituting
a food composition are safe for human consumption, the
composition claim is rejected as an invention likely to cause
harm to public health under Article 32 of the Korean Patent
Act. According to KIPO's Examination Guidelines (a) materials
obtained from a human body (e.g. placenta and blood) and (b)
substances toxic or harmful to the human body (e.g. DDT and Hg)
are not permitted for use in the preparation of food. When the
KIPO raises a rejection on the ground that the safety of
components of a food composition is unknown, the rejection can
be resolved by submitting a test result to prove human
Patent application filings for food-related inventions are
continuously increasing in Korea, as shown in the graph above.
We believe that careful preparation of the specification and
claims raises the chance of securing a patent for food-related
HANOL Intellectual Property & Law
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Republic of Korea
Tel: +82 2 942 1100
Fax: +82 2 942 2600