29/11/2016
Food and drink is one of the largest manufacturing sectors in the UK and the industry invests heavily in R&D. As in any other fiercely competitive market, food and drink companies need to be constantly innovating in order to keep up with changing consumer trends and government regulations. Thousands of new products are brought out every year and there is a huge focus on branding and advertising, with companies constantly striving to maintain brand image and distinguish themselves in a crowded market. Meanwhile, the potential usefulness of patents in protecting food- and drink-related inventions can often be overlooked.
In this article, we will dispel some common myths about the patenting of food and highlight some of the potential benefits:
Myth #1: recipes are not patentable
It is true that in most cases, it will be difficult to obtain a patent for a recipe, but this is not because recipes are unpatentable per se. In fact, a foodstuff is a type of chemical composition and a recipe can therefore be considered as a method for making a chemical composition. As with any other chemical composition or method, it is in theory possible to obtain a patent to protect a foodstuff or recipe, provided it is both new and inventive. And this is where most recipes will fail.
Novelty will often be an issue for recipes, since it can be difficult to come up with a recipe that has never been used by anyone else anywhere, in particular where the recipe uses conventional combinations of ingredients. Even where a novel recipe can be established, it will then be a significant hurdle to show that the recipe would not have been obvious to try to a person skilled in the art of food creation.
However, there are exceptions and in some cases recipes may provide something unique or unexpected that could be considered inventive. For example:
- a specific combination of ingredients that provides an unexpected synergistic effect
- a non-obvious substitute for a standard ingredient, or
- an additive that provides an unexpected effect on the properties of the resultant foodstuff.
In such cases, the filing of a patent application should certainly be considered. As discussed below, there are also many other aspects of a foodstuff that may provide a good basis for patent protection.
Myth #2: food inventions are not sufficiently technical for patent protection
Often, the ‘USP’ of a food product relates to a sensory effect that the product has on the consumer, whether that be a unique visual effect, smell, taste or texture. These types of unique sensory effects can easily be dismissed as too ‘low-tech’ or consumer-oriented to be considered suitable for patent protection. However, a novel sensory effect will typically be the result of an underlying physical characteristic of the food product, such as the structure or composition, and this will often be sufficiently technical to form the basis of a patent application.
Many food products will also provide other ‘technical effects’ such as improvements in stability, shelf life, breakability or packaging, or novel ways of providing or masking flavours or smells, reducing calories etc. The production process may also have some novel aspects worthy of patent protection, for example, changes in apparatus or methods to achieve new effects or to provide improved efficiency or a reduced footprint (physical or carbon).
These are just some examples and there are many different aspects of a food product that could be patented. A patent attorney with experience in patenting consumer products can help to identify the novel aspects and suggest a strategy for protecting a new product.
Myth #3: trade secrets are the best protection for food related inventions
Trade secrets are an extremely powerful form of protection for recipes and other food related inventions and there are many cases of trade secrets that have successfully been kept for generations, perhaps most famously, the secret recipe for Coca Cola. Where it is feasible for a company to keep a recipe secret, both from the public and from the majority of employees, trade secrets may be the best option and can provide protection that is potentially indefinite. But trade secrets are not always appropriate and patents should be considered as an alternative way of protecting a food related invention.
Patents may be a better option, for example, where the invention is derivable from the final food or drink product. This may be the case where a recipe or composition could be determined by a straightforward chemical analysis or where an invention could be reverse engineered. Patents may also provide a potentially stronger form of protection in cases where an invention has to be disclosed relatively widely to employees within a company or to a third party, e.g. to enable the product to be manufactured.
Myth #4: Patents are too slow for a fast moving consumer market
It is true that in many countries it can take a very long time for a patent application to be granted and a new food product may well have a life cycle that is short in comparison. However, this should not necessarily be a reason for ruling out the use of patents to protect food related inventions. In fact, even while still pending, a patent application may provide many benefits and may still be worth spending time and money on, even if there is a low expectation that the patent application will proceed to grant. These benefits include:
- Keeping your competitors on their toes: other companies will think twice about launching a very similar product if they can see that a patent has been filed. Until a patent is granted, there will be uncertainty in the final scope and this will keep competitors guessing.
- Remaining competitive: if your competitors are filing patent applications, you may be in a stronger position in the event of a dispute or negotiation if you have your own patent applications.
- Products can be marked as ‘patent pending’, which may improve marketability.
In summary, there is huge potential for obtaining patent protection in the field of food and drink and patents should be considered as a valuable IP tool, alongside trade marks and trade secrets.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
