The missing ingredient: why the food industry needs to protect its intellectual property

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:

Patents provide protection for food/beverage products, manufacturing processes/recipes, machinery, packaging, nutraceutical uses, etc.
Registered designs provide protection for aesthetic (non-technical) aspects of products, e.g. packaging or aesthetically-pleasing food products.
Trade marks identify a product as being from a particular company.
Copyright comes into existence automatically and, as its name suggests, protects against copying of literary, dramatic, musical or artistic works.

Why should I protect my intellectual property?

Financial: IP rights add value to your business, are considered assets, and can be licensed out to generate revenue.
Corporation tax relief: the Patent Box is available for patented inventions.
Competitive advantage: IP rights are monopoly rights meaning that they can serve to ring-fence an area of the market for your product. This can be used to gain an advantage over competitors or a foothold in a new region, e.g. by prohibiting import of competing products.
Investment: The presence of IP rights is attractive to investors, as you are seen to be at lower risk of being outcompeted in a particular market, and can help differentiate your business from competitor companies. Moreover, granted IP rights can be seen as a stamp of approval, e.g. a patent may indicate that a product is highly innovative.

Debunking the IP myths

Myth: Food/beverage products are not eligible for protection

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.

Myth: Recipes are not 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).

Myth: Intellectual property protection is for big corporates, not SMEs

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.

Myth: Protecting my intellectual property is expensive

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.