“Understanding the Intersection of Food and Medicinal Patent Laws in China: A Case Study Analysis”

Understanding Patent Laws and Regulations in China

In the realm of patent law, China has established a comprehensive legal framework to protect intellectual property rights. The Chinese Patent Law, in particular, plays a crucial role in determining the patentability of inventions and creations. However, the application of this law in certain fields, such as the food industry, can often lead to complex and controversial situations.

Chinese Patent Law and Food Safety Law

Article 5(1) of the Chinese Patent Law stipulates that no patent right shall be granted for any invention-creation that is contrary to the laws or social morality or that is detrimental to public interests. This regulation is designed to prevent the patenting of inventions that could disrupt social order, lead to crimes, or threaten social stability.

Similarly, the Food Safety Law is designed to ensure the health and safety of the public by regulating the production and trade of food. It prohibits the addition of medicine to food unless the added substance is traditionally considered both food and Chinese herb medicine. This law also provides a catalogue of substances considered as both food and Chinese herb medicine, developed and published jointly by the National Health and Family Planning Commission (NHFPC) and National Medical Products Administration (NMPA).

Patent Practice in the Food Industry

In the field of chemistry, patent applications often involve a product in the food industry that includes a compound or composition with a preventive or therapeutic effect. However, if the application intends to protect the use of the product as food, it can lead to controversy over whether such a patent application complies with Article 5(1) of the Chinese Patent Law.

Case Studies: Patent Applications in the Food Industry

To better understand the application of the Chinese Patent Law in the food industry, let’s examine two example cases.

Case 1: Functional Food Composition for Ameliorating Depressive Symptoms

In the first case, a patent application was rejected because it claimed that a food composition could ameliorate depressive symptoms caused by aging-related reduction in mental and physical functions. The application was deemed to violate the Food Safety Law, which prohibits claiming that a food or health food has a preventive and/or therapeutic effect.

However, the applicant was able to overcome the rejection by modifying the claims and the description, limiting the depressive symptoms to those of non-depressed patients and excluding preventive and therapeutic functions for diseases from the use as food and health product. As a result, the Decision of Rejection was revoked, and a patent right was granted.

Case 2: Formulation for Treating Obsessive Compulsive Disorder (OCD)

In the second case, a patent application was rejected because it claimed that a formulation could be used to treat, ameliorate, or prevent Obsessive Compulsive Disorder (OCD) and that the formulation could be included in ice cream, frozen food, or yogurt. The application was deemed to violate Article 5 of the Chinese Patent Law.

However, the applicant was able to overcome the rejection by amending the claims and removing the disclosure relating to carriers in the form of foods. As a result, the Decision of Rejection was revoked.

Reflection and Suggestions for Drafting

These cases highlight the importance of careful drafting when applying for a patent in the food industry. It is crucial to ensure that the description of food and/or drink, health food, medicament, and symptoms are respectively included in different technical solutions. Moreover, it is recommended to avoid claiming that a food or health food has a preventive and/or therapeutic effect, as this could lead to a violation of the Chinese Patent Law.

In conclusion, while the application of the Chinese Patent Law in the food industry can be complex and controversial, careful drafting and a thorough understanding of the law can help to navigate these challenges and secure patent rights.