08 November 2018

Food for thought: how patents can help businesses within the food and drink industry

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.

Bitesize facts about patents

What is a patent?

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).

How can a patent help my business?

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.

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

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.

What has types of products/processes can be protected within the food and drink industry?

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.

Laura Clews
Managing Associate