Cooking up an innovative storm? Patent opportunities in food and beverages
The food and drink industry is constantly evolving, with new trends emerging every year. From plant-based meats and dairy alternatives, to functional ingredients and fermented foods, these trends are driving innovation in the industry and changing the way we think about food.
In this article, trainee patent attorney Victoria Seville explores the role of patents in the food and drink industry, and how they are being used to protect modern food and drink trends.
Products with naturally derived ingredients
Patenting natural products is a complex topic and can present significant challenges due to the fact that the discovery of things already in existence is not patentable.
Additionally, for a natural product to be patentable it must, like any other invention, be novel. Which raises the question – if a natural product by definition must have already existed in nature, how can it be novel?
The patentability of naturally derived products is determined by several factors, including whether the substance has been isolated and purified, whether it has a new and non-obvious use, and whether it is in a naturally occurring form. A natural ingredient may already be known but may become patentable by virtue of the manner or form in which it is used.
One example of a naturally derived ingredient is CBD, or cannabidiol. CBD is a non-psychoactive compound found in the cannabis plant that has gained popularity in recent years for its potential health benefits. With the rise of CBD as a food and drink ingredient, more CBD infused products are being created, like for example chocolates, gummies, and even alcoholic and non-alcoholic beverages. As the market for CBD food and drink products continues to grow, companies are looking for ways to protect their products and processes.
The cannabis plant occurs naturally, and as such it would not be possible to patent the plant itself, nor the chemical compounds found naturally in the plant. However, it is possible to patent methods of extracting or utilising compounds from the plant, making synthetic versions of those compounds or making other chemicals derived from those natural compounds.
The same principle could be applied to protecting other products with naturally derived ingredients, such as for example collagen- or protein-containing food and drink products.
‘Free-from’ foods
The development of innovative solutions to replace animal products, such as meat, seafood, eggs, and dairy, with alternative proteins has been a major trend in the last decade. However, this trend also presents its own issues when it comes to obtaining patent protection.
Typically, product claims to ‘free-from’ formulations have been rejected with Examiners asserting that the claims merely recite “products that use or eliminate common ingredients”. Claims for products comprising novel ingredients are easier to obtain, but those based merely on combinations of known food ingredients are very difficult to obtain product patents for.
For example, meat substitutes, which mimic the taste and texture of traditional meat, are typically made from a variety of plant-based ingredients such as soy, pea protein, and mushrooms.
Given the long history of plant-based meat alternatives, proving novelty and uniqueness is often one of the key challenges, and few companies have managed to obtain patent claims to a substitute meat product per se.
Despite these challenges, obtaining patents for meat substitute products and processes is possible. Companies have successfully obtained protection for compositions comprising plant or microbial proteins having structures, textures or other properties comparable to those of animal products. Patents have also been granted for innovations in technology, processes and machinery for manufacturing the product itself.
The vegan movement shows no sign of slowing down, so as meat and dairy substitutes continue to move into the mainstream, protecting market position will be critical for companies developing ‘free-from’ products.
Conclusion
By protecting innovations involved in modern food and beverage trends, patent holders stand themselves in great stead for the years to come. However, in order to be successful, patentees must carefully navigate the patenting process and demonstrate that their products and processes are truly novel and non-obvious.
Barker Brettell has a dedicated food and drink sector group. If you would like to discuss options for protecting your invention, please contact the author or contact your usual attorney.
