South Korea: Patenting a food-related invention in Korea
Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX
Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

South Korea: Patenting a food-related invention in Korea

Sponsored by

hanolip-400px.png
water-747618-1920.jpg

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.

Claim format

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 mind.

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 preference.

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

korea.jpg

Safety aspect

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 safety.

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 inventions.

Min Son

Partner, Hanol IP & Law

E: minson@hanollawip.com



HANOL Intellectual Property & Law

6th Floor, Daemyung Tower, 135, Beobwon-ro, Songpa-gu

Seoul, 05836

Republic of Korea

Tel: +82 2 942 1100 

Fax: +82 2 942 2600

hanol@hanollawip.com

www.hanollawip.com

more from across site and ros bottom lb

More from across our site

Partners and other senior leaders must step up if they want diverse talent at their firms to thrive
European and US counsel reveal why they are (or aren't) concerned about patent quality and explain how external counsel can help
Firms such as Bird & Bird and Taylor Wessing have reported rising profits and highlighted the role of high-profile IP disputes and hires
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Lawyers in the corporate and IP practices discuss where the firm can steal a march on competitors, its growth plans in London, and why deal lawyers are ‘concertmasters’
Kathleen Gaynor, DEI specialist at Phillips Ormonde Fitzpatrick, says deliberate actions can help law firms reach diversity goals
Scott McKeown, who moved to Wolf Greenfield one year ago, says the change has helped him tap into life sciences work and advise more patent owners
The winners of our Asia-Pacific Awards 2024 will be revealed during a ceremony in Malaysia on September 26
Zach Piccolomini of Wolf Greenfield explains how to maximise your IP portfolio’s value while keeping an eye on competitors
Witnesses at a Congressional hearing debated whether reforming the ITC is necessary and considered what any changes should look like
Gift this article