Innovation in food chemistry is growing rapidly, but it comes with increased legal risk. At the EPO, around 13% of granted food chemistry patents are opposed, compared with an overall average of just 4%. What makes food chemistry patents especially vulnerable, and how can companies protect their ideas and innovations?
A wave of innovation in food chemistry
The markets for food and beverages, encompassing everything from chocolate to nutraceutical beverages, are relevant for businesses based in Europe and beyond. On top of that, foodtech is a field that remains robust against global economic uncertainties, as the demand for better value, prompted by higher costs, ends up driving innovation in areas such as better shelf stability, cleaner labels, clean(er) processing technologies, and waste product valorisation.
The forces shaping the global food landscape have created not only challenges but also an urgent stimulus for innovation. Over the past decade, the food industry has changed dramatically. This is why food innovation has been, and will continue to be, a main area of attention for many big multinationals. Consumers now expect more from what they eat. Foods must not only nourish but also support gut health, align with sustainable values, and address (medical) conditions such as weight management. This shift has driven a surge in innovation in the food chemistry area, accompanied by a flurry of patenting activity.
Since 2015, the number of patent filings in food chemistry at the EPO has risen steadily, although some exceptions between years do exist. Patent applications in this field are filed by large multinationals as well as SME companies and sole inventors. Applicants from the US, the Netherlands, China, and Japan lead the way. Notably, the Netherlands ranks among the top contributors, reflecting strong innovation and intellectual property engagement at the national level.
Small companies can also leverage the power of patents to drive innovation. The EPO’s Patent Index 2024 indicates that SMEs or individuals made approximately a fifth of the applications filed by European applicants that year.
This combination of rapid innovation and high commercial stakes makes disputes more likely.
A 13% opposition rate: food chemistry patents are under pressure
Oppositions at the EPO are a centralised way for third parties to challenge a problematic patent belonging to a competitor. Opposition is regarded as a powerful tool because it allows an opponent to revoke or limit a patent with effect in all contracting states of the European Patent Convention where the patent is validated, including unitary patents. It represents a commercially attractive way for businesses to mitigate potential harm to their economic activities, as opposition is much less expensive than separate invalidity proceedings or proceedings at the Unified Patent Court.
The unique aspect about patenting in the food chemistry domain is that patents in this area face higher opposition rates. Furthermore, multiple opposing parties are often involved, making oppositions a delicate and complex procedure.
This trend highlights how valuable and contested innovations in this field are. Factors contributing to the high opposition rate in food chemistry include the following:
Intense commercial competition in food and beverage innovation.
A crowded innovation space, with close overlap between similar product formulations and/or manufacturing processes.
High economic value attached to patent-protected food products; for example, infant formulas.
Food and beverage companies continuously release new products. Legal conflicts can emerge quickly when product launches are at stake.
Practical implications: prepare and protect
Although a dip was recorded in the number of applications filed in the food chemistry area from 2023 to 2024, innovation in this field is projected to grow in the coming years.
In an era defined by volatility, geopolitical tension, inflationary pressure, climate-driven disruptions, and shifting consumer priorities, many sectors are bracing for contraction. If anything, adversity can sharpen the momentum of food chemistry innovation. Building a strong patent portfolio is central to growth, as those that continue to innovate in moments of uncertainty – for example, in recessions – emerge stronger, and more relevant than their counterparts.
Given the elevated risk in this field for opposition, food innovators should think beyond the initial patent filing, anticipating possible challenges such as opposition. A robust intellectual property strategy in food chemistry innovations includes the following:
Monitoring similar filings and competitor activity (search and watch);
Filing offensive oppositions against third-party patents, or third-party observations against patent applications;
Careful drafting of patent applications that anticipates competitive challenges (including appropriate fallback options);
Conducting targeted freedom-to-operate assessments before market launch; and
Engaging experienced representation during prosecution and opposition.
