Food technology is an increasingly important field of technology, within which we are seeing a rise in patenting activity.
This is the first of two articles in which we consider the field in general, the types of inventions that can be patented, and some patent and opposition trends. We will then move on to consider some recent European Patent Office (EPO) case law, and how this affects the developing patent practice in this area.
The growth of food technology patent applications
The increasing importance of food technology is demonstrated by the number of published European patent applications that mention International Patent Classification (IPC) A23. This classification covers food and foodstuffs and their treatment. In 2013, the number of published European patent applications in class A23 was 1,524, but by 2023, this had risen to 2,360. This is an increase of over 50% in the last ten years.
The types of food products for which patent protection is sought covers a broad range of subject matter, particularly related to new food product developments, including meat substitutes, wholegrain flours with reduced asparagine, insect-based foods, functional foods (e.g. free-from foods, personalised foods) and 3D printed foods. Patent applications are also filed for sustainable packaging such as edible seaweed-based drinks containers.
In relation to the protection being sought in patent applications for food product inventions, this can include claims comprising structural limitations (e.g. the shape of dried pasta), chemical compositions, and methods for making a food product. Product-by-process claims can also be useful in situations where it is only possible to define a product by the way in which it is made. Where a food or beverage composition has a therapeutic effect, claims directed to a method of treatment using the composition, or medical use claims (e.g. at the European Patent Office) can also be utilised.
It is interesting to note that, once granted, European patents in class A23 are opposed at a significantly higher rate than the EPO average. In 2023, the percentage of all European patents that had been opposed was 2.3%. However, in class A32, the opposition rate was 9.7%, which is over four times the general rate. This is indicative that the food technology area is of keen commercial interest and highlights the importance of considering Freedom to Operate issues prior to launching commercial products. Of those European patents in class A23 that were opposed, ~24% were maintained as granted, ~36% were maintained in amended form, and ~40% were revoked.
The importance of including test data in patent applications
Moving on to consider some of the recent case law in this field of technology, EPO Enlarged Board of Appeal decision T 0629/22 provides an example of the importance of including test data in your patent application in order to demonstrate the improved functionality of a food or drinks product. This case related to a patent for a vegan cheese analogue. The patent was opposed by two parties, and in the initial opposition hearing, the patent was maintained with some amendments to the claims. Both opponents appealed this decision.
Under discussion in the appeal hearing was a claim directed to a cheese analogue having a defined composition, the analogue being obtainable by a specified process (i.e. a product-by-process claim). It was argued by the patentee that this combination of features resulted in a cheese analogue with improved melt-stretch characteristics. This argument was said to be supported by examples in the patent.
To counter this, one of the opponents had filed data showing that a cheese analogue made according to the claim did not provide these required characteristics. However, this analogue had a composition that was right at the limits of the claimed ranges. In their decision, the Board of Appeal stated that the examples in the patent showed that the claimed effect can be obtained substantially across the scope claimed. Thus, the presence of a single non-working example with the scope of the claims did not cause a problem.
As a result, the patent was maintained with the product-by-process claim mentioned above. One point to consider here is whether this decision would have been different if a non-working example had been found which was well within the claim scope instead of at its limits.
Parameters in food technology patents
Another recent Board of Appeal decision in the field of food technology involved a patent directed to improving the storage stability and taste performance of turbid (i.e. cloudy) drinks such as fruit juices (T 0804/22). The patent claimed a turbid oil-in-water emulsion with a specific composition. The claim also set out average particle size requirements for the oil droplets in the emulsion, the average particle size being achieved by specific weight percentage amounts of the droplets.
In the initial opposition hearing, the patent was revoked. Specifically, it was decided that the patent did not provide a teaching as to how to calculate the weight percentage values specified in the claim, and thus that the invention was not disclosed in a sufficiently clear enough way for it to be carried out by a skilled person. This decision was appealed by the patentee.
The Appeal Board agreed with the conclusion reached in the opposition hearing, and thus the appeal was dismissed. This case highlights the critical importance of ensuring that any parameter present in the claims can be determined either (i) by using methods described or referenced in the patent, or (ii) by the skilled person's common general knowledge.
In the second part of this article, we will be looking at some further EPO Board of Appeal decisions relating to patents for the use of foodstuffs to treat a medical condition.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
