KIPO has published examination guidelines for the cosmetics field establishing stricter enablement requirements for functional cosmetic inventions, natural cosmetic inventions, and cosmetic inventions using biotechnology. 

With the rise of K-Beauty in the global cosmetics market, the number of patent applications for cosmetic inventions in Korea has steadily increased over the past decade. This has led to a need for more detailed patentability standards for cosmetic inventions, and in May 2023, KIPO published examination guidelines specifically for the cosmetics field in order to improve the predictability and quality of examination relating to cosmetic inventions. While the guidelines are not substantially different from the existing KIPO practice, they provide additional details regarding the patentability of specific types of cosmetic inventions, with a particular focus on written description (enablement) requirements. 

KIPO examiners tend to be very strict about whether the scope of a claim is sufficiently supported by the specification, and often try to limit the scope of the claims to what is disclosed in the working examples. Further, KIPO has specific rules for certain types of inventions that must be met before the invention can be allowed. For example, medicinal use inventions in the pharmaceutical field must disclose pharmacological data supporting the claimed medicinal effects in the originally-filed specification to be considered valid. KIPO has applied similar data description requirements to "functional" cosmetic inventions (cosmetics that relate to improvement in physical properties like skin tone, wrinkles, hair loss, etc.). Specifically, KIPO generally requires that functional efficacy via a biochemical or physical effect of this type of invention must be based on specific and objective examples in the specification. As examiners apply this rule very strictly, potential applicants for cosmetic inventions are often left wondering whether their application specifications are sufficiently detailed to support the claims. 

The new examination guidelines give greater detail on the requirements for written description under Article 42(3) of the Korean Patent Act in relation to three types of cosmetic inventions: functional cosmetic inventions, natural cosmetic inventions, and cosmetic inventions using biotechnology. 

(1) Functional cosmetic inventions
 
As noted above, a functional cosmetic is a cosmetic that provides a specific function via a biochemical or physical effect on the skin or hair (e.g., compositions relating to improvement in skin tone, wrinkles, hair loss, etc.). For such inventions, the specification must include a specific and objective test example proving the functional usefulness/efficacy of the invention, or a detailed description that establishes the functional usefulness/efficacy of the invention, unless the functional usefulness/efficacy of the invention was already clearly proven before the application was filed. 

Notably, the examination guidelines also clarify the enablement standard for anti-aging cosmetic inventions. Since "anti-aging" can be achieved through a variety of biological mechanisms, the claim term "anti-aging" can be broadly interpreted to apply to many different effects on the human body and its functions. Due to uncertainty as to whether specific working examples regarding wrinkle alleviation, skin brightening, moisturizing effects are sufficient to support claims containing the term "anti-aging", KIPO has clarified in the examination guidelines that merely providing working examples regarding effects such as wrinkle alleviation, skin brightening, or moisturizing effects is not sufficient to meet enablement requirements for anti-aging cosmetic inventions (where the claims use the term "anti-aging"), since the term "anti-aging" has a broader meaning than just wrinkle alleviation, skin brightening, or moisturizing. Under previous guidelines, the standard of enablement for anti-aging cosmetic inventions varied for different examiners (some examiners acknowledged enablement when the specification provided several working examples on wrinkle alleviation, brightening or moisturizing effects), but KIPO has now taken a strict position that merely providing only specific working examples to support claims containing the term "anti-aging" is not sufficient.

Applicants that receive a rejection regarding the lack of enablement for the claim term "anti-aging" may overcome it by amending the term "anti-aging" to a more specific term for which working effect is supported by the working examples. Further, for functional cosmetic inventions in general, Applicants should make sure that the specification describes the functional usefulness with objective data. 

(2) Natural cosmetic inventions

A natural cosmetic is any cosmetic that contains animal or plant ingredients, or raw materials derived therefrom. For such inventions, the specification should describe the scientific name and origin of the natural substance, if the natural substance is difficult to obtain. Also, if extracts or fractions are used as active ingredients, the manufacturing method of such active ingredients should be specifically described in the specification. 

(3) Cosmetic inventions using biotechnology

A cosmetic using biotechnology is one that contains materials derived from organisms such as nucleic acid fragments, proteins, enzymes, microbiomes, and cells etc., or that are obtained by artificially modifying functions of organisms. For such inventions, the method of obtaining the starting material, the specific means/method by which the invention can be carried out, as well as the experimental results to confirm the effects obtained therefrom, should be described in the specification. These description requirements are essentially equivalent to the description requirements of biotech inventions. 

Further, for an invention involving a cosmetic composition containing a nucleic acid sequence with 10 or more nucleotides or an amino acid sequence with 4 or more amino acids, the sequence list must be described in the specification and attached as an electronic file to the application. For an invention involving a cosmetic composition containing microorganisms, the microorganisms must be deposited before filing a patent application, the deposit must be described in the specification, and documents for demonstrating the deposit must be attached to the application, unless such microorganism can be easily obtained by person having ordinary skill in the art. 

The new guidelines are expected to lead to more consistent and predictable examination of cosmetic inventions. KIPO appears to have recognized that functional cosmetic inventions and cosmetic inventions using biotechnology have characteristics that are similar to those of medicinal use or biotech inventions, and thus adopted similar written description requirements for functional cosmetic inventions, resulting in generally stricter examination standards. Applicants for functional cosmetic inventions will need to be more careful to ensure that their specifications contain detailed descriptions and/or experimental data sufficient to objectively prove the effects of their inventions.