Change in JPO's Examination Practice for Use-Limited Food/Drink Inventions

The Japan Patent Office (JPO) has announced that it will allow patenting of food/drink inventions characterized by their novel use applications (use-limited food/drink invention) based on its newly-revised Examination Guidelines and Examination Handbook, which came into effect on April 1st, 2016. Under previous JPO examination practice, the patentability of a use-limited food/drink invention, characterized solely by its novel use limitation, was denied due to lack of novelty, since such a use-limited food/drink invention was not deemed to fall under the category of a “use invention”, and the use limitation was therefore not deemed to be a matter to define the invention. However, the market for foods falling under the category of “foods with health claims” (FHC) has been growing in recent years. In addition to the original two sub-categories of FHC, i.e., “foods for specified health uses” (FOSHU) and “foods with nutrient function claims” (FNFcC), a new sub-category of FHC, i.e., “foods with function claims” (FFC), was introduced in April 2015. Therefore, there is growing demand for effective protection of use-limited food/drink inventions with patent rights. As a result, the current revisions to the Examination Guidelines and Handbook are expected to change the JPO’s examination practice greatly, and open the possibility of patent protection of use-limited food/drink inventions. This article summarizes expected changes in examination practice at the JPO for use-limited food/drink inventions, following the current revisions to the Examination Guidelines and Handbook.