Faced with ever-changing consumer preferences for new and original products, in-house sources from consumable goods industries say they are using new technologies to create better products for their customers, and using patents to protect what was traditionally thought to be unpatentable.
While handwritten recipes describing classic combinations of flour, sugar and yeast may be beyond the scope of patent protection, IP specialists emphasise that an invention qualifies for patent protection so long as it is novel and inventive.
And indeed, patents are becoming more important to food and beverage manufacturing companies as they develop more innovative technologies to create new product experiences and keep up with market trends.
Olivier Corticchiato, patents lead for nutrition at Nestlé in Switzerland, explains: “If the recipe is only about the juxtaposition of ingredients, so you make a new cake and just put some more sugar in it, then your invention is obvious and not patentable.
“But if your invention is non-obvious and inventive because you are mixing something that was un-mixable in the past – say, a new oil – and you found out a new way to do it, then that is a way to patent a product.
“Basically, you need to ask yourself if you solved a technical problem to get a patent,” he adds.
Because food science is more an exercise in chemistry than gastronomy, patents can protect the unique combination of chemicals used to create a new taste. The chief patent counsel at a European tobacco company says there is a lot of science behind getting the perfect flavour for a product.
“If you’ve got an active ingredient in your product, you can patent how that transfers into the overall system. It’s really interesting how much R&D goes into understanding the quantities of different ingredients and how they work in a recipe to give you the ultimate product, which can be protected at a formulaic level,” he says.
He says that because the cigarette industry is crowded with several new entry companies, one big problem he faces is assessing FTO risks. For him, a search is more than just looking up five large competitors: “We’ve got some complex searches to look for third party patent because we can’t just focus on known competitors.
“We are seeing many small players and going into a new technology space means finding the right balance of technology searches if you are crossing with other sectors such as food, beverage, and pharma.”
Patents do more than just protect machinery or ingredient quantities. For Corticchiato at Nestle, patent protection means keeping your competitor from recreating the experience consumers have with the product.
“You can patent chocolate if it’s particular flavour is due to a specific taste you artificially manufactured by finding a way to mix oils with other ingredients. There, you have a patentable chocolate and nobody can have the same recipe and the product experience will be driven by that specific taste,” he explains.
“Our challenge is we are a cross between pharma and the food industry so it is important that we deliver products that are attractive but also deliver real health benefits. We do that through clinical trials just like the pharma industry, and rightly so.”
According to Michael Stott, partner at Mathys & Squire in London, the food and drink manufacturing sector is the largest in the UK, accounting for 17% of all manufacturing, and has grown by 27% over the last decade making it the fourth fastest growing sector.
The challenge for many growing companies in this space, according to Stott, is that they know very little about how to protect their assets and maximise the value of their IP.
He adds that 96% of the UK’s food and drink manufacturing base are SMEs, which often have limited exposure to IP beyond a familiarity and recognition of the value of trademarks.
“Recipes can be patented, and the idea that they can’t be is a myth. Many SMEs believe that myth, and as patent attorneys, we’re trying to debunk it.
“Patents can protect food compositions, which are essentially a mixture of ingredients. Patents can also protect processes for preparing products, such as making a food product or beverage, which is essentially a method for following a recipe,” he says.
“We’ve got a client who has successfully patented a gluten free fish-and-chips batter composition that also has reduced oil pick up during frying. We’ve also patented an egg powder substitute that is used in a host of products that substantially extends shelf life and stability,” he says.
Sean Jauss, partner at Mewburn Ellis in Bristol, says that for some products, patents can make little difference: “You wouldn't use patents for things like rums, whiskeys or beer because they are all made with known ingredients so product differentiation can rely on small variations in quantities,” he says.
“Some differences are quite small. For gin, for example, the difference might be the botanical additive so they might change the formula by using a different ingredient. Something like Johnny Walker will be distilled very carefully, depending on the year. It really is the small things around the product that give the unique flavour.”
A famous form of protection in the food and beverage industry is trade secrets. Coca-Cola has reportedly kept its formula a trade secret for over 100 years, and KFC keeps its original hand-written chicken recipe in a 770-pound vault guarded by cameras and motion protectors.
But Corticchiato says that keeping an invention as a trade secret is a lot more difficult than these companies might make it seem: “We are a large company and because of the co-operation involved, it would be hard to keep a technology secret.
“And even if you do decide to use a trade secret, you can’t keep your competitor from doing the same thing. If you have a patented technology, you can,” he says.
The patent attorney at the tobacco company agrees and says he could consider making a manufacturing process a trade secret, but there would be a risk that a competitor could then file a patent for the same process.
“Because of the technology pushing forward innovation in this space, patents are becoming more valuable for players to gain a competitive edge where once previously you could depend on branding and marketing.
“That behaviour makes it very difficult to keep something a trade secret, but if we can protect something as a trade secret, then that’s what we’ll do,” he says.
Not only can food be patented, the consumable products industries are relying on patents more heavily to protect their new inventions. Part of the reason for that is that trade secrets are more difficult to keep for consumables than you might think – although it should be noted that our recipe for the perfect Thanksgiving turkey marinade would fit nicely inside a vault.
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