Protecting intellectual property (IP) by way of patents and registered design rights is currently underexploited in the food industry. However, there are certainly a few businesses building broad IP portfolios encompassing numerous aspects of their operations, such as the food products and recipes themselves, factory machinery, and even food packaging.
We have published a number of articles which explore the benefits of protecting your IP – but what about the IP of others? How can you minimise the risk of a competitor preventing you bringing your product to market?
The answer to these questions is to perform IP due diligence. Ideally, this should be built into your product development process, and be a key consideration before entering a new territorial market. A patent attorney will be able to provide a freedom to operate opinion, identifying any relevant patents or designs that may encompass your food product, packaging or other activities (e.g. carrying out your method of manufacture). In the absence of such IP due diligence, money and many man-hours can be wasted on developing a product, only later to receive a legal challenge from a competitor shortly after launch!
If relevant IP rights are identified, then this is rarely an absolute impediment. In many instances a patent attorney can suggest (potentially small) changes to your product to design-around these existing IP rights, so that you can proceed to launch with little disruption and peace of mind. Therefore, it is important to perform this analysis at an early stage in development. Alternatively, if a design-around is infeasible, there are measures that can be taken to attempt to invalidate (or as a last resort, seek permission to use) the existing IP.
Needless to say, performing appropriate IP due diligence provides you (and your investors) with increased legal certainty and confidence in your product launch.
IP due diligence is of vital importance for legal and commercial certainty, even more so as innovation and competition continue to grow in the food industry.
For more information, contact the authors – David Hobson and Lionel Newton – directly, or visit our specialist food & beverage page.
Food and drink companies are all too aware of the challenges faced in order to attract and retain new customers. The search for a competitive edge has lead companies to invest heavily in research and innovation in order to produce the requisite taste, mouthfeel, appearance and nutritional value to attract potential customers, whilst simultaneously reducing production costs. In addition to this, there is pressure to keep abreast of (or stimulate) the latest consumer trends, such as the rise in vegetarianism and veganism, interesting new alcohol-free drinks, healthier versions of comfort food, and the use of AI within the food industry, as well as meeting the requirements of new governmental policies.
Producing food and drink products meeting such requirements can provide companies with a competitive advantage within this industry. But how is this advantage maintained once derived? And how do those within the food industry prevent competitors reaping the rewards from their research and investment?
Typically, there are 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, possibly the most well-known trade secret in the food and drink industry is the recipe for Coca Cola. However, trade secrets provide no protection if another company legitimately produces the same product or manufacturing process. In addition, trade secrets provide no protection if a third party is able to simply reverse engineer the product produced.
Accordingly, patents may provide a better form of protection where it is possible to derive the recipe from the food or drink product itself. This may be the case where a recipe or composition could be determined by simply analysing the end product.
A patent is an intellectual property right granted by a country’s government for protection of an invention within its territory for a limited period (typically 20 years).
A patent gives the owner the right to stop others making, using, importing or selling the invention in the territory for which the patent has been granted and allows the owner to seek compensation for damage caused by another company producing/selling/using the same product or using the same manufacturing process.
Even if your company is not looking to manufacture the product itself, patents can be useful in helping to generate investment or can form the basis of a licensing agreement.
In order to obtain patent protection it is necessary to illustrate that your invention is both new and provides a non-obvious solution to a technical problem. It is also necessary to illustrate that the invention has industrial applicability, though most products/processes within the food and drink industry will meet this requirement.
Examples of products which would meet the requirements of patent protection include, food or drink products having an improved taste, texture or appearance whilst reducing fat or sugar content; a combination of ingredients which produce a synergistic effect; a non-obvious substitution for a commonly used ingredient (which is particularly important given the new governmental policies); and methods of altering the flavour profile of food and drink products.
In addition, processing methods within the food and drink industry can 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. In line with this, and given the increased desire to produce environmentally friendly products, new environmentally friendly or biodegradable packaging could also be granted patent protection.
For more information, contact the author Laura Clews directly, or visit our specialist food & beverage sector page.
The food and drink sector was arguably the first sector to recognise the importance of brand protection. Indeed, the very first trade mark application was for the Bass triangle logo back in 1876.
Since then, this competitive and innovative industry appears to have really grasped the importance of packaging, get-up and branding. For a number of food and beverage companies (particularly those that may not wish to publicly divulge their recipes and/or manufacturing processes), the brand is how they communicate with their customers and encourage consumer loyalty. In turn this has meant that, for many companies within this sector, trade marks have become some of, if not the most, valuable assets within the business. One only needs to look at brands such as Heinz, Coca Cola and Pepsi to understand the importance of a strong, recognised and trusted brand in a consumer focused industry.
In more recent times, consumers have demanded increased transparency from food and beverage companies and this has led to more companies utilising trade mark protection as a method of demonstrating brand authenticity. In fact, applications for food and beverage trade marks have increased by nearly 10% over the past couple of years, as they become widely recognised as the primary selling vehicle for products in this sector.
However, building a successful and recognised brand isn’t always easy. Many companies will often invest heavily in the initial brand creation, development and promotion before realising that legally they cannot use that branding without facing court action. This is why trade mark availability searches are so important at the outset.
Looking to the future, once a brand has become successful and desirable within the industry, many owners will find that unwanted attention shortly follows. This can take the form of copycats or brand-hijackers, both of which aim to unfairly compete with your business and take advantage of, or damage your reputation. Where trade mark protection is not in place, enforcement against this type of activity will be very difficult and often costly. It is therefore imperative for those in this sector to focus on protection of their brand at the same time as they are trying to build their reputation. Investment at the outset will safeguard the asset that has the potential to increase in value exponentially in the future.
For more information, visit our trade marks practice pages, or our specialist food & beverage sector page.
Beyond trade marks, protectable intellectual property (IP) is not necessarily the first thing that comes to mind when one has developed a new food or beverage product. Why is this the case, especially when so many other industries have readily adopted and employed IP protection to their commercial advantage?
There are four principal types of intellectual property rights: patents, trade marks, registered designs, and copyright:
Reality: The unique shape of a food product or its packaging can be (and has successfully been) protected by trade marks and registered designs.
Furthermore, some very familiar food products, such as rice cakes (Quaker Oats – EP1025764), granola bars (Quaker Oats – US4451488), and orange juice (Tropicana – WO 2004/060083) have been the subject of patent protection. Put simply, if you provide a new and non-obvious technical solution to a problem, then your product or process is patentable.
Reality: Recipes are patentable so long as they solve a technical problem, such as a recipe that provides bread with improved texture or size (Warburtons – GB2545647).
Reality: This is simply not true; some of the most innovative products come from SMEs. Without appropriate IP protection in place, others can simply copy your product and exploit the fruits of your labour. Having protection prevents this, and moreover differentiates you from your competitors, which can be extremely helpful when trying to attract investor funding.
Reality: We have a wealth of experience of working with SMEs and helping tailor their portfolios to their budgets. Protecting your IP at the outset can provide numerous financial benefits in the long-run.
For more information, contact the author David Hobson, or visit our specialist food & beverage sector page.
