A Taste of the Future?

Author: Anna L. Hatt
IP News

It is an exciting time for technical innovations in the food industry, in the UK, Europe and globally.  We look here at the factors contributing to a boom in food innovation, at some fast developing areas, and at how to protect food innovations against competitors.

So why is now an important time?

In 2020 and 2021, the food industry has focussed on keeping people fed during the Covid pandemic.  With restaurants closed across much of the world, business survival has been under threat.  At the same time, the fundamental importance of the food industry has been brought home to consumers faced with food shortages.  Workers in the food supply chain, along with health care workers and others, have been included in the UK’s key worker provisions.

The pandemic has not been a time for food innovation.   New food and drink lines in the USA are estimated to have fallen by 29% in 2020 (Food Technology Magazine, 1 April 2021).  Some Covid-related innovations may well be temporary in nature, for example cook-at-home kits.  HelloFresh shares dropped by 6 % in May 2020 after news of a possible Covid vaccine, and restaurant kits are on the decline as restaurants reopen.

However, the situation is now changing rapidly.  The world is opening up, with a consumer spending boom predicted.  The food industry has a backlog of new ideas.  Venture capital investment in food start-ups is increasing year-on-year, reaching over $8 bn globally in 2020.

This coincides with new regulatory freedom.  In the UK, Brexit allows independent regulation in some food-related areas.  An example is gene editing of crops using CRISPR technology: Rothamsted Research is developing a gene-edited wheat with low asparagine content (Nature 591 345 2021).  In Europe, the European Food Safety Authority granted approval for mealworm protein for human consumption in January 2021; 11 more applications for insects are being considered by Efsa.  The first approval world wide for laboratory-grown chicken was given to Eat Just in Singapore in 2020.  There are also new regulatory constraints which may stimulate innovation: in the UK “Natasha’s Law” will introduce a stricter allergen labelling system for takeaway food from October 2021.  The UK was ranked first in a Global Food Innovation Index compiled by Dalhousie University, Canada, in 2020, based on analysis of regulatory environment, business competitiveness, market readiness, intellectual property and research and development.

Of course, these recent events overlie a long-term need for food innovations aimed at achieving sustainability.  This is reflected for example in the Courtauld Commitment 2025, a UK food and drink sustainability initiative with many big-name signatories.

Many growth areas in food innovation relate to sustainability.  These include:

–    plant-based foods.  Meat substitute companies have developed rapidly in recent years, with Impossible Foods and Beyond Meat each being valued at over $1bn (www.forwardfooding.com). Improvements in texture are being worked on, with Impossible Foods patenting scaffolds for cell-based meat substitutes.  Plant-based fish substitutes are on the way, from companies such as Hooked and Good Catch.

–    other alternative sources of protein such as insects.  The new European regulatory freedom in this area has been welcomed by market leader Ynsect, a French company, which already provides Buffalo mealworm for use in biscuits and pasta.

–    food from waste streams

–    sustainable packaging. Recent imaginative approaches include “flat pack” pasta, which forms a 3D shape on cooking and thus reduces the amount of packaging needed, and Oohu edible seaweed-based containers being trialled for Lucozade drinks.
Health-related foods are also of great interest.  Examples include:

–    functional foods such as healthy ageing dairy products from Nestle and Danone
–    free-from foods
–    clean label foods
–    low-alcohol drinks
–    personalised food.

Finally, food innovations are making use of developments in other technical areas.  Examples include:

–    smart farming
–    autonomous warehouse collection and delivery (currently the subject of patent disputes involving the UK online supermarket Ocado)
–    food share apps
–    blockchain records of supply chains
–    3d printing of foods.  These include textured foods such as steak (patented by Novameat). Soft food for chemotherapy patients is also being investigated by several groups.

There are various types of intellectual property which can be used to protect food innovations.  These include patents, trade secrets, trade marks, designs and plant variety rights.

When obtaining a patent, details of an invention are made public in return for a monopoly over the invention.  By contrast, with a trade secret, details of the invention are by definition not made public.  There have been some very successful examples of protection using trade secrets in the food industry, for example the recipe for Coca-Cola.

In terms of cost, patenting is more expensive than a trade secret.  So when might it be worth patenting a food invention? Is this even possible?

The answer to the latter question is a definite yes: many food inventions are patentable.  Whole sections of the classification system used by Patent Offices are devoted to food inventions.  There is a long history.  A UK patent was granted in 1787 for a yeast-like potato composition to be used for baking, and Louis Pasteur patented his improved yeast at the French Patent Office.

The European Patent Office has reported a trend in recent years of increased patenting of food-related inventions.  In 2019, almost 4000 patent applications were filed at the EPO in the area of food technology, with around half that number being granted in the same year.  Those companies not making use of the patent system need to bear in mind that their competitors may well be doing just that.  The field is also contentious, with over 200 patents being challenged at the EPO in 2019.

The rules for patenting food inventions are the same as in other areas of technology.  These vary from country to country but are generally based on similar principles.  Taking the European Patent Office as an example, the invention needs to be new and inventive compared with what is known already anywhere in the world (including information made public by the inventors themselves).  It is worth noting that “new” food products based on importing an unfamiliar cuisine from another country are unlikely to be considered new for patentability purposes.  The new feature needs to be technical in nature rather than aesthetic or sensory.  For example, a cracker having improved shelf life might well be patentable; a cracker with a new flavour probably would not be.  The invention must be described in sufficient detail to be used by others.  Both methods and products can be protected.  There are exclusions from patentability for medical methods, plant and animal varieties, and on moral grounds.  These issues may be relevant to some health food and agriculture inventions.

The requirement for a technical development means that home or restaurant recipes using conventional ingredients and equipment are not normally patentable.  By contrast, food production methods using new ingredients or industrial equipment are more likely to be patentable.  By way of examples, the EPO has granted a patent for a multi-layer sponge cake baked with infra-red radiation and Further Foods in the United States has patented a process using supercritical carbon dioxide to make shelf stable French fries.  There may be some exceptions – again by way of example, the EPO granted a patent for a meatball recipe which seems possible to prepare at home.  It helps if you or your patent attorney can provide a convincing explanation of why the invention is technical in nature.  Generally, however, trade secret protection is more relevant to home or restaurant recipes.  Limitations on patent enforcement also need to be borne in mind.  Patents cannot normally be enforced against private and non-commercial use, so would probably not be effective to prevent someone from cooking a recipe at home.

Timing needs to be considered.  A patent typically takes several years to be granted and provides protection for up to 20 years.  This may be too slow for fast-moving goods, or, by contrast, too short for an iconic recipe.  Patents are more relevant to the sweet spot in between – where an invention needs to be protected for years or decades rather than months or centuries.  An example is Nestle’s invention of porous particles for reducing sugar content: these are potentially applicable to many product ranges over some years.

Another issue to consider is the strength of protection provided.  Patents once granted provide a monopoly right, preventing others from using the same invention even if it is developed independently.  By contrast, inventions protected by trade secrets are protected from being revealed by insiders, but no further than that.  It is possible for third parties to reverse engineer commercial products, or to work independently to reach the same idea.  This is a particular risk in crowded development fields.

Finally, it is worth thinking about the business and marketing use which can be made of the patent or trade secret.  Marking a product as patented or patent pending may help to deter competitors. Collaborations between multinationals and food start-ups or other smaller companies are becoming increasingly common, as the multinationals look for innovative products.  Examples include Amazon’s investment in Plenty for vertical farming, or Unilever’s collaboration with Sun Basket for meal kits.   In such situations, patent rights will improve the smaller company’s negotiating position and help it to be taken seriously.  Similar considerations apply when venture capitalists show interest in food start-ups.  Either patents or trade secrets can be used for marketing.  For example, KFC has achieved publicity by emphasising the secret nature of its recipe: former KFC owner John Y. Brown, Jr. called it “a brilliant marketing ploy.” Conversely, the exercise of patent rights can adversely affect a company’s image, as seen when Pepsi tried to enforce its rights in patented potatoes used for its Lay’s potato chips against Indian farmers.

We hope this has provided food for thought on how to protect edible innovations.  If you would like further advice, please contact us.

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