[Article / Patents] Points to note when filing food-use inventions in different countries (Biotechnology and Life Sciences Committee, Patent, December 2025)
Updated: 4 hours ago
Article information
Article type: Publication review
Categories: Patents / United States / Europe / China / South Korea
Main topics: Examination and appeal practice / Claim interpretation / Novelty / Patent drafting and translation
First published on this website: October 1, 2026
Display and classification checked: October 1, 2026 (not a revalidation of the legal analysis)
[Article / Patents] Points to note when filing food-use inventions in different countries (Biotechnology and Life Sciences Committee, Patent, December 2025)
In Japan, the 2016 revision of the Examination Guidelines strengthened protection for food-use inventions, but overseas, national laws and examination practices differ greatly.
1. Permissible claims
① US: Product-use inventions are not recognized; draft as methods. A use in the preamble often has no limiting effect.
② Europe: Purpose-limited substances / use. For therapeutic use, “Substance A for use in...”; for non-therapeutic use, “Non-therapeutic use of...”. Swiss-type claims are not permitted.
③ China: Method / Swiss-type claims (use for manufacturing ...) are effective.
④ Korea: Products (food compositions). Similar to Japan, but novelty is readily denied if the use causes no structural or morphological difference.
2. Difficulties in obtaining US rights
① Inherency: Even if an unknown use of a known substance is discovered, novelty is denied if it is deemed inherently included in the prior art.
② Laws of nature: Effects of ingestion within the body are interpreted as governed by laws of nature. Merely adding new knowledge to the known step of eating makes proving a remarkable effect extremely difficult.
3. European distinctions
① Therapeutic use: For treatment or prevention of disease, use purpose-limited substance claims under EPC 54(4) or (5).
② Non-therapeutic use: For health maintenance, such as recovery from fatigue, use claims explicitly stating “non-therapeutic” are effective to clarify that no therapeutic treatment is involved.
There is a dilemma: wording such as “improvement of ...” may be unclear, while naming a specific disease may conflict with prior art (medical uses).
4. Strategic conclusions
Rather than simply translating and filing the formulation allowed in Japan, amendments to a form suited to each country are essential from the national-phase transition stage.
In the US, emphasize structural differences or distinctive features as a method, rather than use.
Reformulate as Swiss-type claims in China and purpose-limited substance claims in Europe.
Even broad strain-level rights recognized in Japan are highly likely to require limitation to a specific deposit number (strain) overseas.
Original article: https://lnkd.in/gYmRMEp3
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Updates and corrections
Substantive corrections and additions are recorded separately from classification, related links and display changes.
October 1, 2026: First publication of the author's original LinkedIn text on this website. Article type, categories, topic tags, sources and consultation navigation added.
2026-10-01 | Display maintenance: added case references stated in the original or language-alternate metadata; not a revalidation of legal analysis.
2026-10-01 | Name notation: replaced verified Japanese-script personal names with Roman-letter forms in this English article and its navigation. Legal analysis and original publication date unchanged.
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