Food and drink companies face a multitude of challenges in their quest to attract and retain customers.

In
the search for a competitive edge, companies invest heavily in research and innovation in order to
produce items with the requisite taste, mouthfeel, appearance and nutritional value whilst
simultaneously controlling production costs. In addition, there is the added pressure of changing
consumer trends, such as the rise in vegetarianism and veganism, alcohol-free drinks, and healthier
versions of comfort foods, whilst meeting new governmental policies and requirements: quite the raw
deal.

There are typically two methods used within the food and drink industry to protect intellectual
property: trade secrets and patents.

Trade secrets can be useful where it is difficult (if not impossible) to derive the ingredients or process
used to produce the food or drink product.

What can be protected within the food and drink industry?

Suitable food and drink products may include those with an improved taste, texture or appearance
whilst reducing fat or sugar content; combinations of ingredients producing a synergistic effect; a non-
obvious substitution for a commonly used ingredient (e.g. a reduction in E-numbers); and methods of
altering the flavour profile of food and drink products, to name just a few examples of eligible
contenders.

Processing methods within the food and drink industry can also be protected, whether these relate to
more cost-effective manufacturing methods; methods of providing improved mixing of ingredients; or
new process steps which provide an unexpected result in the product.

Given the increased desire to produce environmentally friendly products, new environmentally friendly
or biodegradable packaging may also be patentable.

Why patents can help?

A patent is an intellectual property right granted by a specific country’s government for a limited time
period, typically 20 years from the filing date. A patent enables the owner to prevent third parties from
making; using; offering for sale; selling; keeping; or importing the patented invention within the territory
for which the patent has been granted. For a specific process, the owner has the right to prevent third
parties from using or offering for use that process within the relevant territory without the patent
owner’s consent.

What’s the best protection for your invention?

Before filing a patent application it is advisable to review your business strategy and consider how your
IP ties into your commercial aims.

Patenting inventions can be a costly process, especially as the number of territories in which you require
protection increases, and so it is worth considering which territories can most effectively support your
business. For example, where are you planning to sell your product or use the process?

If you do not wish to exploit the IP yourself, where might you wish to licence the product/process? In
considering the actions of third parties, are there particular counties in which you wish to prevent a
competitor from exploiting your invention?

Applications in Europe can be filed via a European patent application at the European Patent Office
(EPO) enabling patent protection in up to around 40 countries on the basis of a single application. An
alternative route is the Patent Cooperation Treaty (PCT) which covers over 100 countries in a single
initial patent application, and allows delayed selection of countries such as US, India, China and Japan as
well as the EU.

What criteria do I need to meet in order to get a patent granted?

In general, to obtain a patent, the IP must be novel, inventive and capable of industrial application.

Novelty

A claimed invention cannot have been publically disclosed before the date on which the application was
filed. The assessment of novelty can be based on any public disclosure including scientific journals,
published articles, presentations, sale of the product itself or displaying the product at a trade show
(where it would be possible for someone to determine the novel features from the product itself). For
this reason, it is essential that no details of the invention are publically disclosed before the date on
which the patent application is filed. However, if disclosure is unavoidable, for example in investment
meetings, it is advisable that non-disclosure agreements (NDA) are used.

Inventive step
 The claimed invention must also be inventive, i.e. not obvious in view of what was known at the filing
date of the patent application. The assessment of whether something is inventive is based on the
knowledge of a skilled person within that field.

Industrial application

The claimed invention must be capable of exploitation within an industry. Most products and processes
within the food and drink industry will meet this criterion.

After having met these three requirements, what are your next steps?

Filing a patent application

A patent application contains a description of the invention for which patent protection is sought and
typically includes:

 a discussion of the background art;

 a statement of invention;

 examples;

 claims; and

 any relevant figures.

The background discussion outlines what was known in the field at the filing date of the application and
any issues associated with the known products, processes and uses. If the claimed invention suggests its
use will overcome or at least provide an improved effect on existing products, it is useful to know what
existing issues there are.

The statement of invention defines the claimed invention. This section defines each feature of the claim
and may also discuss possible alternatives to these features.

Examples are often provided to illustrate that the claimed invention can be put into practice. Where a
particular advantage associated with the invention has been discussed, for example an improved taste
with reduced sugar content, the examples can illustrate the improved effect compared to previous
products.

The claims define the boundaries of the invention for which protection is sought. Typically, the first
claim broadly defines the invention in order to obtain the broadest scope of protection possible.
Subsequent claims further define the features of the invention or include additional features, thereby
narrowing the scope of protection.

Figures can also be included. These can include graphic illustrations of the claimed invention, flow
diagrams illustrating a particular process or graphical representations of data produced through the
analysis of the claimed product (or a product produced by a claimed process) compared to products and
processes already known in that field.

Once the application has been filed, it is generally not possible to amend the application to redefine the
invention, include addition information or correct errors. As such, if the application is poorly drafted, it
can leave the applicant with little or no protection for their invention. The drafting of the patent
application can therefore be almost as important as the invention itself and so it is always
recommended to hire a patent attorney with the requisite qualifications and experience to ensure that
the application is of value to your business.

Examination of the patent application

After filing, the application is searched and examined by a Patent Office Examiner. If the Examiner does
not consider the patent application to meet one or more of the criteria required to grant a patent, a
report detailing the objections raised is issued. One of the main roles of a patent attorney is to assess
any objections raised by the Examiner and advise how best to address the objections raised, particularly
in light of your business strategy.

Once a response has been filed, the Examiner reassesses the application. If the Examiner considers the
application to now meet the necessary requirements, a patent will be granted, if not the Examiner will
issue a further report.

So your patent is granted: then what?

It is a common belief that once a patent has been granted, there is no bar from manufacturing and
selling the claimed product or using the claimed process – this is not always the case! A patent is a
negative right, meaning that only allows you to prevent third parties from doing these acts within the
territory for which the patent has been granted. It is possible that there may be other third-party
patents which could prevent you using your product or cover upstream or downstream processes which
you are planning to use.
Accordingly, before commercialising your product or process it is advisable to consider such third-party
rights. This can be done by requesting a freedom to operate search (FTO). If any potentially relevant
patents or applications are found, a patent attorney can analyse these documents in view of your
commercial products and/or processes. If these documents are considered relevant it may be possible
to design around them; seek a licence from the rights holder; seek to invalidate the third-party rights or
even, depending on the age of those rights, simply wait for them to expire.

If you believe you have developed valuable commercial IP, it is highly advisable to consult a patent
attorney for more detailed information on identifying and protecting the intellectual property in your
innovation.