Colin the Caterpillar is a familiar face in many offices, appearing at birthdays and office celebrations since he first hit the shelves in 1990. In recent years, he has also become well known in the world of intellectual property following Marks and Spencer’s trade mark dispute with Aldi over their look-alike product in 2021-22.
On 28 January 2026, Marks and Spencer released a gluten-free version of Colin the Caterpillar in their Made Without Wheat range. M&S joins other major brands that have released gluten-free versions of popular items, such as Arnott’s gluten-free Tim Tams, General Mills’ gluten-free Old El Paso tortillas, and an expanding range of gluten-free Oreos from Mondelēz, reflecting a growing demand for ‘free-from’ alternatives.
This increased demand is being driven in large part by growing awareness of gluten intolerances and coeliac disease. Coeliac disease is an autoimmune disease affecting around 1% of the population. It causes the body’s immune system to react to gluten, a protein found in various grains including wheat, oats, barley and rye. This reaction damages the lining of the gut and can result in symptoms such as nausea, vomiting and abdominal cramping.
The introduction of free-from alternatives requires the development of new food production methods, recipes and even ingredients, both to replace gluten and to ensure the product is still appealing in taste and texture. This raises the question as to whether food manufacturing companies and household brands can obtain protection for innovation in ‘free-from’ food.
Patenting gluten-free innovation
It is a common misconception that recipes and food formulations cannot be patented. As long as an invention meets the criteria of novelty, inventive step and industrial application, patent protection is possible. The novelty requirement means that the claimed invention must not have been disclosed to the public before the filing date of the application, for example through selling, marketing or public display. In the food industry, inventive step, i.e. providing a non-obvious solution to a technical problem, could be satisfied by a product which has an improved taste or texture despite the avoidance of certain ingredients, a synergistic effect arising from a particular combination of ingredients, unexpected health benefits, or a non-obvious substitution for a commonly used ingredient. Having data to support these effects, whether it be from taste tests or mechanical testing, can be crucial to successfully obtaining patent protection. The requirement of industrial application is generally met inherently by products and processes within the food industry. Patent protection for ‘free-from’ alternatives is common, as inventive solutions are required to ensure the products adhere to the standards of traditional food products without an essential ingredient.
Many hundreds of patent applications relating to gluten-free products have been published, as well as many more for other free-from products. Mondelēz, for example, have several pending patent applications for baked goods (EP4188098A1), aimed at overcoming the dense, crumbly, and sandy or granular texture, poor mouth feel, inferior appearance, and relatively short shelf life it claims are usually associated with gluten-free goods. General Mills have been granted a European patent [A2] [A3] directed to gluten-free tortillas comprising a novel mixture of gluten-free flours (EP3468371B1), with good toughness extensibility and rollability. General Mills have also obtained patent protection for a dough comprising a gel matrix (EP3310177B1) which imparts mouth-feel, viscosity and elasticity properties similar to that of a gluten containing composition.
In addition to composition-based claims, patent protection may also be obtained for inventive processes of manufacture. Several patents exist for methods of producing gluten-free doughs and beers by fermenting the grains with bacteria or yeasts that break down the gluten to acceptable levels.
Patenting treatment for Coeliac disease
Currently, those with coeliac disease must maintain a strict gluten-free diet to avoid triggering the symptoms. However, the risk of cross-contamination during manufacture and food preparation can make this difficult in practice. As a result, many organisations are researching methods of treatment which aim to reduce symptoms or decrease a patient’s sensitivity to gluten, with a number of different treatments currently undergoing clinical trials.
Under the European Patent Convention, methods for treatment of the human or animal body by therapy are excluded from patentability. However, this exclusion does not extend to pharmaceutical products and compositions. Therefore, at the European Patent Office (EPO) pharmaceutical companies typically seek patent protection for drug compounds, formulations, dosage regimens and for specific medical uses rather than the method of treatment itself. Formulating patent claims appropriately therefore plays an important role in obtaining patent protection in these situations.
The timing of patent filing for inventions which will need to go through clinical trials also presents a strategic balancing act. Applicants must file early enough to avoid novelty-destroying disclosures arising from academic publications or the registration of the trials themselves, while also ensuring that sufficient experimental data is available to render the claimed therapeutic effect credible at the filing date. Due to the complexity of these considerations, it is advisable to communicate with your patent attorney who can guide you down the optimal path.
Formulations aiming to treat coeliac disease that are currently undergoing clinical trials fall into several categories. These include:
- Enzyme-based formulations which break down gluten before it can trigger an immune response. An example of this is Latiglutenase, a mixture of two gluten-specific enzymes that break gluten proteins into smaller fragments which do not trigger an immune response. While each of the enzymes had been suggested for use on their own to treat coeliac before, the combination of the two was patentable since it was novel and produced an unexpected technical effect, namely the complete detoxification of gluten.
- Monoclonal antibodies which target specific molecules involved in the immune response and reduce the effect. Ordesekimab and TEV-53408 are two such antibodies undergoing Phase II clinical trials. They both work by targeting the protein Interleukin-15, which is involved in the proliferation of T cells that attack the gut during a gluten response. At the EPO, patent protection can be obtained for antibodies that target antigens which have already been targeted but only where an unexpected technical effect can be demonstrated over the antibodies in the prior art. Such effects can be e.g. surprising improvements in therapeutic activity, stability or immunogenicity, or an unexpected property not exhibited by prior-art antibodies.
- Small molecule-based therapies, such as Ritlecitinib, developed by Pfizer and currently used in the treatment of alopecia. Ritlecitinib is an inhibitor of Janus kinase 3 (JAK3) and TEC-family kinases and therefore modulates immune signalling pathways activated by autoimmune responses. This drug is protected by multiple patents and patent applications relating to the compound itself and its use, as well as to its tosylate salt and its crystalline forms. Filing multiple applications in this way allows protection for subsequent developments and optimisations that are made to an original invention (e.g. the discovery of a useful small molecule), and can be useful for extending the length of protection.
These are just a few of the many treatments being researched. Due to the lengthy authorisation process for medicinal products, much of a patent’s lifetime may be used up before the product can even enter the market. To somewhat mitigate this loss of effective patent term, proprietors of medicinal product patents can apply for Supplementary Protection Certificates (SPCs) in the UK and in each of the EU member states, as well as certain other non-EU European countries. SPCs can extend the term of protection granted by a medicinal product patent up to a further 5 years after expiry of the relevant patent. A further six-month extension may be acquired where certain studies have been performed looking into use of the product for the paediatric population. For further information see our page on Supplementary Protection Certificates here.
The treatment of coeliac disease is a growing field of research, with many hundreds of patent applications published each year in this area. Until such therapies receive regulatory approval, those with coeliac disease will continue to rely on a gluten-free diet, but hopefully, through utilising the advantages of good IP protection, a less dense, crumbly and sandy future is on the horizon.
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