기능성 식품과 지식재산권- 특허권을 중심으로 -

Abstract

There are many regulatory laws regarding food, but there is no comprehensive and general regulation called the Food Act. Considering the importance of food, this situation may be surprising. In that respect, it is very encouraging that major universities in three countries, Korea, China, and Japan, have been holding academic conferences with food law as a common topic. In particular, the 2024 academic conference was significant in that it resumed events that had been temporarily suspended due to COVID-19, and the diversity of topics was also taken into consideration to announce the current status of patent law regulations and directions for improvement of functional foods. Korean patent law does not have any specific regulations for functional food inventions. Therefore, like general inventions, the definition of invention, patent requirements, reasons for non-patentability, and description requirements under the Patent Act. In relation to this, the Korean Intellectual Property Office has established examination standards related to functional foods and sets out the description requirements for inventions, claim description requirements, and points to keep in mind when determining whether a reason for non-registration is applicable. And the Ministry of Food and Drug Safety, which is in charge of food safety, sets standards for safety testing and hazard testing for functional foods. Therefore, in the case of functional food-related inventions, patentability or scope of protection can be determined by referring to the inspection standards and methods set by the Ministry of Food and Drug Safety based on the unique standards of the Korean Intellectual Property Office examination standards. In addition, due to the nature of functional foods, there are issues with supplementing the legal principles of interpretation of functional food claims, the extension of the duration of patent rights, and the relevance of reasons for limiting effectiveness. In practice, there are many cases of false labeling in the case of functional food patents, so regulations should be supplemented in this area. Also, it is important to note that due to the nature of functional foods, there is a high possibility of them being mixed with medicinal properties, so they must be judged separately. There are many issues that can be reviewed regarding functional food inventions, but the fields of food law and intellectual property law have been discussed separately, resulting in a lack of unified research or review. In the future, the two fields will need to work together to review issues related to functional food patents and find ways to improve them.