On 4th May, the UPC revoked the ‘remdesivir’ anti-viral drug unitary patent owned by Chinese research institute AMMS and rejected all limitations proposed by the patentee (case ID UPC_CFI_552/2025).
Granted on 18 June 2025, the patent EP 3854403 claimed the use of remdesivir for the treatment of COVID-19, threatening the commercial operations of Gilead Sciences – the original developers of remdesivir. Gilead brought revocation action on the day of grant on the grounds that the claimed second medical use of remdesivir for treating COVID-19 was not inventive and lacked sufficiency.
The background
Remdesivir is a prodrug that is metabolised within cells after it is administered. Once within cells, it is processed into a nucleotide analogue that mimics adenosine (an RNA building block). This nucleotide analogue halts viral replication of RNA viruses by disabling a key viral enzyme, the RNA polymerase, which is required for copying the viral RNA genome. Prior to 2020, remdesivir had not been clinically proven to treat any viral infections, but preclinical research had shown that the drug appeared to be promising for treating infections by coronaviruses SARS and MERS.
Gilead has patents for the compound and for the use of the compound for treating coronavirus infections, the latter of which was filed in 2016, years before SARS-CoV-2 (SARS2) was identified. However, AMMS managed to file an application for the second-medical use of treating viral infections by the newly identified SARS2 before the pandemic was even declared by WIPO and shortly before clinical trials began in China in early 2020.
Narrow second medical use claims are routinely accepted by the EPO, even if an identical treatment for the broader class of a disease (the “first medical use”) has been disclosed before the priority date of the second medical use patent application. However, the requirement for an inventive step still applies and this can be undermined if the skilled person has been provided with some reasonable expectation of success.
The decision
In the case of EP 3854403, the Court dismissed the claimant’s sufficient objection but revoked the patent on the grounds that the second medical use lacked an inventive step. The decision issued by the Central Milan Court states that the treatment of COVID-19 with remdesivir was an obvious choice for the skilled person at the application date because the viral genome had been made publicly available before the priority date and it was therefore known to the skilled person that SARS2 was highly similar to SARS1.
The Court further noted that experts had speculated publicly that remdesivir would be a good candidate anti-viral treatment due to the positive results from pre-clinical experiments on SARS1 and MERS. The decision highlights how the UPC applies a strict approach to assessing the inventive step of second medical use and indicates that patentees must be wary of any ‘hints’ to the treatment’s effectiveness published prior to the applications priority date.
Gilead is also pursuing an Opposition against the patent at the EPO. The UPC and EPO are distinct entities so the outcome of the opposition could differ from the UPC’s recent decision, but it seems likely that the EPO will take a similar approach since parallel decisions to date have remained broadly uniform. While the reasoning for decisions occasionally differs, the Enlarged Board of Appeal decision G1/24 regarding claim interpretation demonstrated an intent to bring EPO case law in line with UPC rulings.
Battles for pandemic innovation IP
While the commercial significance for these technologies is huge, several pharmaceutical companies publicly pledged not to enforce their patent rights to allow mass production of life saving drugs and vaccines at a time of global crisis. These allowances were short-lived, ceasing in May 2023 when the pandemic was officially declared to be over, and contentious proceedings are ongoing for a number of critical patents.
The disputes have largely been centred around patents for the widely distributed COVID-19 mRNA vaccine filed early in the pandemic. The most high-profile cases revolve around ongoing infringement and invalidity proceedings between Moderna and BioNTech/Pfizer.
In the wake of the pandemic, applications of thousands of patent families directed to Covid-19 related technologies were filed in the space of a few short years. While many patents filed in 2020 following the characterisation and subsequent proliferation of SARS-COV-2 have been granted, many divisional applications and later developments are still pending prosecution, and may yet be the subject of new infringement and revocation proceedings.
The impact of these patent disputes extends further than the ownership of the IP itself; as the decisions handed down by the UPC and European Boards of Appeal shape the case law on inventive step, plausibility and medical use claims.
Users of the European patent system will be familiar with the EPO’s long-standing practice of requiring the description to be brought into line with amended claims, both before grant and in post-grant proceedings. The EPO stands alone among the major global patent offices in having such a requirement, and in recent years both the legal basis for this practice and the extent of amendments required (if any) have become highly controversial.
Oral Proceedings took place today, 8 May, before the EPO’s Enlarged Board of Appeal. The referral asks whether the EPC requires adaptation of the description following claim amendments, and if so, which provision supplies the legal basis. This article summarises the background, the route to the referral, the written submissions, and the main arguments at today’s hearing.
Background: what’s the debate all about?
For many years, the EPO has required applicants, before grant, to bring the description into line with any allowable amended claims. The same requirement arises post-grant where a patent is maintained in amended form. Historically, this was often a relatively light-touch exercise. However, in 2021 the EPO adopted a new policy requiring proprietors either to delete embodiments no longer covered by the amended claims, or to mark them “prominently” as not falling within the claimed invention. This turned what had been a routine procedural step into a major point of controversy.
Objections to this requirement are both legal and practical. Aside from the time and expense involved in making extensive description amendments (particularly in the case of long or complex specifications, or those originally drafted in a non-EPO style), concerns have been raised about interference with claim interpretation during litigation and the risk of introducing added matter. Inconsistent practice between different examining/opposition divisions and Boards has added to the uncertainty.
How did this end up before the Enlarged Board?
Given the controversial change in practice, it was inevitable that users of the EPO began to push back. Starting with decision T 1989/18, a minority line of Technical Board of Appeal decisions began to question whether the EPO’s practice had any legal foundation. This provoked a reaction from other Boards seeking to provide legal justification for the EPO’s practice, such as in T 1024/18 and T 3097/19.
In the case underlying today’s hearing, T 697/22, the Patentee amended the claims during opposition-appeal proceedings. The amended claims were found to meet the requirements of added matter, sufficiency of disclosure, novelty and inventive step. However, the Board found that the claims were inconsistent with the description as amended at first instance. A further amendment to the description was inadmissible for procedural reasons. The question therefore arose as to whether that inconsistency itself prevented maintenance of the patent as amended, whether under the support requirement of Article 84 EPC “or any other requirement of the EPC”.
In view of the divergence in the case law, the Technical Board of Appeal referred the following three questions to the Enlarged Board:
1. If the claims of a European patent are amended during opposition proceedings or opposition-appeal proceedings, and the amendment introduces an inconsistency between the amended claims and the description of the patent, is it necessary, to comply with the requirements of the EPC, to adapt the description to the amended claims so as to remove the inconsistency?
2. If the first question is answered in the affirmative, which requirement(s) of the EPC necessitate(s) such an adaptation?
3. Would the answer to questions 1 and 2 be different if the claims of a European patent application are amended during examination proceedings or examination-appeal proceedings, and the amendment introduces an inconsistency between the amended claims and the description of the patent application?
Written proceedings before the Enlarged Board
In written submissions ahead of the hearing, both the Patentee and the Opponent argued against the EPO’s current practice, though their positions were not completely aligned with one another. The Patentee essentially argued that there was no requirement for adaptation whatsoever. The Opponent took a more nuanced position advocating a significant narrowing of the circumstances in which adaptation of the description could be required, essentially restricting these to situations in which inconsistencies genuinely interfered with the assessment of patentability.
Submissions on behalf of the President of the EPO unsurprisingly defended the EPO’s current practice, primarily on the basis of the “support” requirement of Article 84 EPC and grounds of public policy relating to harmonisation with national courts and the UPC and promotion of “legal certainty for the public as to the scope of the patent monopoly”.
Given the significance of the questions referred, it is not surprising that over 40 amicus curiae briefs were submitted, mainly by patent attorneys, professional associations, and representatives of industry. The vast majority of these argued against any requirement for description amendments, or for a significant restriction of the EPO’s current practice. Common arguments included a lack of clear legal basis, concerns about interference with the competence of national courts and the UPC, the absence of comparable requirements in other major jurisdictions, procedural inefficiency and the risk of unintended consequences such as introduction of added matter.
Looming large over the proceedings was the Enlarged Board’s own recent decision in G 1/24, which held that the description and drawings should always be used to interpret the claims. For the pro-adaptation side of the argument, this meant that inconsistencies now carry greater significance and must be removed. For the anti-adaptation side, G 1/24 instead meant that inconsistencies could be dealt with as an act of interpretation, taking into account the primary role of the claims for determining both patentability and scope of protection.
The Enlarged Board’s preliminary opinion, issued about two months before the hearing, shed relatively little light on its thinking. The Enlarged Board identified two types of inconsistency: those which do not cause noncompliance with the EPC (thereby necessitating no amendments), and those which do (thereby necessitating amendment). However, the Enlarged Board left it open as to how such inconsistencies were to be identified and categorised, or how they might give rise to noncompliance with the EPC.
Oral proceedings before the Enlarged Board
In line with its written submissions, the proprietor argued strongly against any requirement for description amendments. At the heart of its oral submissions was an argument that the “support” requirement of Article 84 EPC merely requires that the claimed subject matter must be derivable from the description, and that amendment of the claims does not impose a reciprocal obligation to amend the description. This argument was based on the plain wording of Article 84 in both English and French, and on a survey of secondary sources including the travaux préparatoires to the EPC.
The proprietor argued that the EPO’s practice rests on a conflation of distinct provisions relating to the role of the claims in defining the subject-matter for which protection is sought on the one hand (Article 84, first sentence) and the requirements of clarity and support on the other hand (Article 84, second sentence). Any inconsistency between the description and claims could be dealt with as a matter of interpretation, recognising that the claims remain controlling for determining the scope of protection (in line with Article 69 EPC) while the description and drawings are consulted to understand their terminology (in line with G 1/24).
The proprietor also emphasised that Article 84 is not a ground for revocation in post-grant proceedings but that a strict adaptation requirement could result in Article 84 becoming a ground of revocation through the back door. Following G 3/14, “pre-existing” clarity or support issues under Article 84 in a granted patent cannot generally be reopened in opposition. A broad requirement for adaptation could therefore also create the odd result that some inconsistencies must be removed while others must be tolerated.
The Opponent took a more nuanced position, but also resisted any broad requirement for conformity between claims and description. It accepted that claim interpretation after G 1/24 is a unitary process in which the description and drawings are consulted together. However, it argued that any real interpretative problem should be addressed as part of the substantive examination of patentability, sufficiency or added matter. Once the claims have been found allowable, there should not be a further, separate exercise of combing through the description for possible inconsistencies, unless a specific inconsistency creates serious doubt about the scope of the claims. The opponent also argued that aggressive description adaptation can distort the balancing exercise between the interests of the patent proprietor and those of third parties as required by Article 69 EPC and its Protocol on Interpretation, tilting the balance too far toward a literal reading of the claims by excising broader subject-matter providing a wider context for their interpretation.
The EPO’s representatives defended the need for adaptation, but in contrast to their written submissions, focused principally on public policy arguments regarding the need to generate certainty for third parties rather than elaborating significantly on the underlying legal basis for current practice. The EPO devoted a significant proportion of its oral submissions to an argument that adaptation of the description would reduce the risk of divergent interpretations of the scope of protection and divergent outcomes in proceedings in different member states. The EPO did not explain how it reconciled this position with its assertion that this did not interfere with the competence of the national courts when interpreting the claims under Article 69 EPC in the context of infringement proceedings.
The Enlarged Board’s questioning was led by the English patents judge Richard Arnold, sitting as an external member of the Board. Questioning focused on several recurring issues:
- First, if G 1/24 requires the description always to be consulted when interpreting the claims, does that support a requirement for adaptation, or does it mean that courts and skilled readers can resolve inconsistencies without amendment – and if so, can such inconsistencies always be resolved as a matter of interpretation?
- Secondly, why should courts be required to deal with sub-optimal, unclear or unamended descriptions if inconsistencies can be resolved by amendment in proceedings before the EPO?
- Thirdly, if claim interpretation is truly a unitary process in which claims and description are to be read together at all stages, is the EPO’s normal practice of deferring description amendment until an allowable set of claims has been identified legally coherent, or should parties logically be required to submit an amended description with each and every amended claim set (a proposition which neither the parties, nor the EPO, nor the Enlarged Board appeared to be willing to endorse)?
Next steps
As is typical of Enlarged Board proceedings, no decision was announced at the conclusion of the hearing. The Enlarged Board’s answers and their reasoning will follow in writing, most likely at some point later this year.
If the written decision follows the contours of the Enlarged Board’s preliminary opinion and the points discussed at the hearing, it seems unlikely that the Enlarged Board will abolish the requirement for description amendments altogether. Equally, however, the maximalist position adopted by some within the EPO under its current practice appeared to be under pressure from the Enlarged Board’s questioning. The main question therefore appears to be how the Enlarged Board will define the threshold differentiating between harmless inconsistencies or those which can be resolved as a pure exercise of claim interpretation, and those which it views as genuinely problematic and necessitating amendment.
Mathys & Squire is proud to share that a selection of our Partners have been featured in the 2026 edition of World Intellectual Property Review (WIPR) Leaders.
Partners Claire Breheny, Anna Gregson, Christopher Hamer, Dani Kramer, Alan MacDougall and Andrew White have all been recommended in this year’s guide.
WIPR Leaders is a reputable point of reference providing an insight into the top intellectual property (IP) practitioners who are spearheading the future of IP across six continents. The entrants are chosen based on highly credible peer-to-peer endorsement, as well as their individual credentials. Inclusion in the guide highlights our attorneys’ innovative approach to IP legal practice, and comprehensive ability to advise clients on complex, interdisciplinary IP matters.
The 2026 guide is available on the WIPR website here.
We extend our congratulations to the attorneys who have earned a place in this year’s ranking.
Partner Rebecca Tew and Managing Associate Adam Gilbertson have been featured in World Intellectual Property Review, Business Insider (UK and Spain) and the Retail Times providing commentary on the rise in trainer patent applications by top-level sports brands.
Their commentary examines how growing attention to the sport, aided by local running communities and large-scale events, has encouraged investment in trainer innovation and increased IP protection, particularly by industry giants Nike and Adidas.
Read the extended press release below.
- Nike had 374 trainer patent applications published in the past year – nearly three times more than Adidas, its nearest competitor*
- Patent activity moves beyond traditional sportswear giants, with brands like On breaking into the top five filers
The number of trainer patent applications by the largest sportswear brands jumped to 791, up 31% from 601 in the previous year*, as companies race to develop new footwear technology, says intellectual property law firm Mathys & Squire.
Mathys & Squire says the rise in patent filings in this field reflects the growing investment in research and development of new technologies and innovations aimed at improving the performance of amateur and recreational runners, who are becoming increasingly competitive.
Specifically, the rise of communities like Strava and Parkrun, adoption of professional training methods, and the increased use of data and performance tracking technologies, has made amateur / recreational runners become more competitive than ever. Recreational runners are also more willing (and able) to take on demanding events, such as the London Marathon and Ultra-Trail du Mont-Blanc.
Sportswear companies are looking to capitalise on this by developing trainer technologies that will help amateur athletes run further, for longer. For example, leading trainer manufacturers are locked in a race to create near-weightless shoes for runners; solutions include injecting gases such as nitrogen into soles and eliminating laces altogether, with some designs pushing the total weight below the 100g threshold.
Adam Gilbertson, Managing Associate at Mathys & Squire, said: “We are also seeing footwear innovation become increasingly focused on comfort and motion support, as more people engage in running through communities and new trends that promote competition and performance monitoring. This is undoubtedly driving demand for technology that helps runners run faster and longer, and take on more demanding challenges like marathons with confidence.”
Nike is dominating the global trainer technology race, with 374 footwear patent applications published in 2025*, comfortably outpacing 18 other major competitors considered in this study (see graph below).
In fact, Nike had as many footwear technology patent applications published in 2025 as its five nearest competitors combined, which include Adidas, Sketchers, Asics, Puma and On. Nike’s long-time German rival, Adidas, increased its patent applications published by 88 in 2025, narrowing the gap but still trailing by a significant margin.
Among the patent applications by Nike is a “fluid movement controller” system embedded in a shoe’s sole, which enables users to adjust cushioning and support levels in real-time to adapt to running conditions and fatigue levels.
Other technologies aimed at improving runners’ performance for which patents are being pursued include:
- Shoe soles from On that return energy with every step. Flexible layers inside the sole stretch when you land and spring back as you push off.
- Adidas shoes that automatically shifts part of their sole sideways in response to foot pressure, to help keep the runner balanced.
- On’s running shoe midsole, which is designed to support runners by absorbing impact and smoothing uneven movement, helping running feel more stable and comfortable, even without perfect form.
- Adidas’ smart running shoes which have sensors that analyse movement and signals users to adjust their gait using vibrations or pressure cues.
- A running shoe that uses an internal air bladder with locking elements to adapt to the foot and then secure it in place, improving comfort and stability for long-distance runs.
Mathys & Squire says that while established footwear giants such as Nike, Adidas, Asics and Puma continue to innovate, data shows that newer rivals are developing their own technologies and investing more in patent protection. For example, over the past year, Swiss brand On had 49 patent applications published, breaking into the top 5 filers for the first time, while Lululemon had 11.
Rebecca Tew, Partner at Mathys & Squire, added that having invested in research and new technologies, footwear companies need to be wary of posting on social media too soon and ensure their intellectual property (IP) is protected via appropriate patent, design and/or trade mark filings. Otherwise, once displayed on social media, it may already be too late to seek patent protection for new technologies and innovations which might quickly be copied by competitors, making anti-counterfeiting particularly challenging.
The number of trainer patent applications rose 31% in the last year, with Nike leading the race
*Research conducted for calendar years 2025 and 2024 based on published patent applications.
In life sciences, the end goal of improving patient outcomes rarely changes. What has changed, quite dramatically, is the environment in which innovation must survive long enough to get there.
For early-stage companies in particular, the path from idea to impact is becoming harder to navigate. Capital is tighter, IPO windows have narrowed, and policy and macroeconomic conditions remain unpredictable. At the same time, global competition is intensifying, and the centres of innovation are shifting. Never has a robust intellectual property (“IP”) strategy been more critical.
A Market Under Pressure
Recent market activity illustrates this point. In the US, 2025 saw one of the weakest years for biotech IPOs in over a decade, with only nine companies listing. This is unlikely to be an isolated anomaly, but rather a reflection of a broader cooling in public market appetite for biotech, driven by weak sector performance, high interest rates, and a general shift away from risk.
This is only one side of the story. At the same time, the pharmaceutical sector is heading towards an unprecedented patent cliff, with more than $300 billion in drug revenues set to lose exclusivity between 2025 and 2030, as patents expire on nearly 200 products, including dozens of blockbusters. Companies therefore face rapid revenue erosion, often losing up to 80% of revenues within a year of generic or biosimilar entry. For large pharmaceutical companies, this creates immediate pressure to identify and secure new sources of value to mitigate against such a sharp drop.
The consequence is a market that feels constrained in one direction and highly active in another. While IPO activity has slowed, mergers and acquisitions and licensing activity remain strong. Transactions are happening, and at scale, but with a clear bias: large pharmaceutical companies are focusing on later-stage or near-commercial assets, where development risk is lower and the path to revenue is clearer.
A Divided Landscape
This has created a pronounced divide across the life sciences ecosystem. Later-stage biotech companies, particularly those with clinical or near-market assets, are in a relatively strong position. Demand remains strong, and competition between acquirers can drive attractive valuations.
Early-stage companies, by contrast, are operating in a much tougher funding environment. Traditional routes to capital are less reliable, and many are having to think earlier about partnerships, licensing strategies, or positioning for acquisition.
In this context, IP strategy becomes critical.
IP As the Core Asset
For an early-stage life sciences company, IP is what investors assess, what partners evaluate, and what acquirers ultimately buy.
A well-constructed patent portfolio can reduce perceived risk, create multiple pathways to monetisation, and support higher valuations. Conversely, a weak or poorly structured IP strategy can limit strategic options and undermine commercial outcomes.
Despite this, IP strategy is still too often treated as something that can be deferred to a later stage – in the current climate, that is a risk few companies can afford. Investing in an IP strategy early on (e.g. what to file, when to file, and how those filings evolve over time) can pay significant dividends for both commercial flexibility and exit opportunities.
Building an Effective IP Strategy
A company aiming for acquisition will structure its portfolio differently from one planning to commercialise independently. Likewise, a business expecting to rely heavily on licensing will need to think carefully about how clearly and broadly its core technology is protected, and how easily that protection can be understood and valued by third parties.
From there, execution becomes a matter of discipline and continuity. Early filings remain essential, particularly in fast-moving or competitive fields, but a single filing is rarely enough. Value is built over time through layered protection, follow-on patent applications that capture improvements, variations, and new uses, gradually strengthen the overall position and make it more difficult for competitors to design around.
There is also a more strategic dimension that is sometimes overlooked. If acquisition is a realistic outcome, it can be worth thinking in advance about who the likely acquirers might be. Understanding how your technology fits alongside their existing portfolios can inform your filing strategy in subtle but important ways. Patents that align with, extend, or reinforce an acquirer’s position can carry disproportionate weight in a transaction, leading to higher company valuations.
As companies mature, freedom to operate comes more to the fore. Demonstrating a clear understanding of the surrounding IP landscape, and the nature of competing rights, can significantly enhance credibility with investors and partners. In a more risk-averse funding environment, that kind of clarity is increasingly valuable.
A Shifting Global Landscape
Alongside these strategic considerations, the geographic dimension of IP is evolving. For many years, the default approach in life sciences was to focus heavily on the US and Europe. Those jurisdictions remain central, but the balance is shifting.
In the US, there are signs of strain within the patent system. Operational disruption at the United States Patent and Trademark Office combined with changes to examination processes is creating greater uncertainty around timelines to grant. For companies reliant on patent protection to support investment and partnering, this unpredictability can have tangible commercial consequences.
Europe, by contrast, has remained relatively stable. The European Patent Office continues to process a high proportion of cases in line with targets, and in many instances offers a more predictable route to grant. That reliability can be valuable when coordinating multi-jurisdictional strategies.
Perhaps the most significant change is the continued rise of Asia, particularly China. Patent filing activity in this region has grown rapidly, far outpacing historical trends in other regions. This is not just a numbers story – it reflects a broader shift in where innovation is happening and how it is being commercialised.
The Rise of Cross-Border Licensing
A result of this shift is the increasing importance of cross-border licensing. As supply chains become more uncertain, affected by tariffs, policy changes, and geopolitical tensions, companies increasingly look for ways to reduce reliance on the physical movement of goods. Licensing allows businesses to access and commercialise innovation across jurisdictions without relying on physical product movement.
This approach brings its own complexities, particularly in relation to manufacturing, tax and structuring considerations. However, it also offers increased flexibility and can enable more efficient global deployment of innovation while retaining greater control over supply chains and cost structures.
The growth of outbound licensing from China is a clear example of this trend. Deal volumes and values have increased significantly, particularly in high-value therapeutic areas such as oncology and advanced biologics. Notably, many of these transactions involve relatively early-stage assets that combine strong scientific differentiation with clear commercial potential.
Standing Out in a More Competitive Market
For UK-based life sciences companies, the implications are clear. Competition is becoming more global, more strategic, and more selective.
Strong science remains essential, but it is not sufficient on its own. Companies must be able to demonstrate a clear and coherent approach to intellectual property – one that supports their commercial strategy, aligns with market expectations, and resonates with investors and acquirers.
That means thinking early, acting deliberately, and building a portfolio that not only protects the core innovation but also tells a compelling commercial story.
In today’s market, patents are not just defensive tools, they are strategic assets that can unlock funding, enable partnerships, and ultimately determine whether an innovation reaches the patients it is intended to serve.
Did you know that the use of beetroot juice in increasing an individual’s VO2 max has been patented, or that a patent is pending to the use of a probiotic for improving training endurance? Or have you heard that there’s a patent application directed to a broccoli sprout extract which reduces blood lactate accumulation during exercise?
World IP Day falls on 26th April and this year’s theme belongs to sports tech. This article seeks to provide a brief snapshot of the contribution sports nutrition makes to the innovation landscape, and what kind of innovation is patentable in this space.
A hotbed for innovation
It is common knowledge that the pharmaceutical industry is underpinned by research and innovation which is constantly pushing at the boundaries of what is possible in providing therapeutic solutions to the diseases and disorders afflicting society. However, the nutraceutical and functional food sector is proving that it too is a hotbed for research and innovation, as well as competition. Indeed, as it currently stands,food chemistry patents have the highest opposition rate before the European Patent Office (EPO), followed by pharmaceutical and polymer patents.
This reflects the rapid growth within the market of functional foods, providing health benefits beyond basic nutrition. The European Functional food market size is projected to nearly double to USD 111.13 million by 2034. A strong driver of this growth is in the soaring popularity of sports nutrition. Attitudes towards health and fitness are continuously shifting and previously specialist products are now breaking into the mainstream market, expanding the pool of target customers.
In an increasingly crowded market, where the innovation landscape is constantly evolving, protecting an innovative product and its potential future market share is vital. Whilst trade secrets and know-how can be very useful, they do not prevent competitors reverse engineering the products of innovation. Companies with registered IP rights, like trade marks and patents, and other intangible assets that can be accounted for more easily in company valuations, tend to attract more investor attention. Registered rights can also open up licencing opportunities or help formalise collaboration agreements with bigger players. Patents can also be of marketing value in and of themselves by highlighting a company’s innovation credentials.
What can you patent in sports nutrition?
Patents can protect almost all inventions that are novel and provide a non-obvious solution to a technical problem, and sports nutrition is no exception. This may cover new products or formulations, as well as new methods of preparing products. However, it also extends to new uses of (even known) substances, such as new sports-related uses.
For example, Velositol® and Nitrosigine® are both patented complexes used as nutritional supplements to improve sports performance. Velositol® (a complex of chromium and amylopectin) enhances muscle protein synthesis, while Nitrosigine® (a form of inositol-stabilised arginine silicate) has been shown to increase nitric oxide levels after regular consumption. Nitric oxide relaxes and widens blood vessels, allowing more blood to flow to the muscles. A dietary source of nitrate may instead be used to increase the body’s nitric oxide levels by consuming, of all things, beetroot juice (Beet It®), the use of which has also been patented for increasing VO2 max levels.
Given the growing understanding of the extensive impact of the gut microbiome on health and wellbeing, it is perhaps not surprising that probiotics may also offer a source of innovation that can be of relevance to sports performance. V·Nella, a supplement formulated by FitBiomics, contains Veillonella atypica and is the subject of a patent application at the EPO directed to its use in increasing training endurance by metabolizing lactic acid. Meanwhile, the sports drink Nomio – derived from a broccoli sprout extract containing highly bioavailable isothiocyanates (ITCs) – has been shown to activate NRF2 (which regulates cellular antioxidant, detoxification, and anti-inflammatory responses) and shift lactate metabolism beneficially to improve exercise performance. Nomio is also the subject of a pending patent application at the EPO.
Patentable sports nutrition does not even have to be related to physical sports. nooLVL is a patented bonded arginine and silicon complex with inositol, which has been found to improve focus and concentration. nooLVL is marketed towards gamers, showing how nutrition for E-sports can be the subject of patentable innovation too. Indeed, functional foods incorporating cognitive enhancers (so called “nootropics”) are commonplace in sports nutrition (and not just limited to caffeine!).
Advancements in technology such as wearables, AI-driven data, microbiome assessments and the integration of multi-omics mean that sports nutrition-related patents are also moving beyond pure biochemical-based innovation. Wearables and microbiome assessments can track important biomarkers of metabolic health, whilst AI can analyse large amounts of data to facilitate the personalisation of nutrition. Sports nutrition seems set to evolve further to integrate these additional technology advancements, opening up entirely new categories of patentable invention.
A number of products are likely to be joining creatine, rehydration beverages, and protein bars on the shelves as sports enthusiasts increasingly look to newer functional products for increasing physical performance, aiding recovery or even improving mental acuity for sport. Biohacking no longer looks like just a fad. Will beetroot juice be on your breakfast table any time soon?
This year’s theme for World IP Day is “IP and Sports: Ready, Set, Innovate.” We are publishing a series of articles highlighting the multifaceted role that intellectual property plays in the sports industry.
There are many registered sports-related trade marks, from brands that sell sports gear to sports teams selling branded merchandise. Many famous players have also registered their names as trade marks for commercial purposes, such as David Beckham and Lionel Messi. However, a recent development in the sports world gives rise to interesting questions surrounding trade mark law, and whether the protection offered is sufficient to safeguard the identity and brand of sportspeople and celebrities more generally.
Last month, Luke Littler, 19-year-old darts World Champion from Cheshire, applied to trade mark his face. Is this a new phenomenon in the sports world?
Athletes’ trade mark strategy
It is not uncommon for athletes to think outside the box when it comes to trade marks. Professional athletes are not always building brands in a traditional sense by selling products under their name, rather, their identity is a valuable asset in itself that can be leveraged for merchandising and endorsement opportunities.
Athletes are also known not just for their name and image, but for key moments on the pitch or the track. Therefore, instead of just obtaining trade mark protection for their name with a word mark registration, they have sought to gain ownership of their idiosyncrasies which are directly related to their sport.
For example, various athletes have rendered their celebration poses as still images, enabling them to be registered as figurative marks. In 2018, Kylian Mbappé trade-marked his cross-arms celebration pose in the EU and in 2024, Usain Bolt, registered a US trade mark for his post-run gesture. Bolt’s trade mark is described as “the silhouette of a man in a distinctive pose, with one arm bent and pointing to the head, and the other arm raised and pointing upward.” Crucially, however, these marks are registered as figurative logos as opposed to representing movement. These registrations protect only the figurative logo as a specific iteration of the celebration in relation to the registered goods and services, and not the general idea of the celebration itself.
Cole Palmer went one step further in protecting his signature celebration by registering not a figurative mark, but a motion mark. He secured a UK trade mark for his shivering motion in 2024, marking the first time a footballer has registered a motion mark for a celebration. The trade mark entry consists of a video of Palmer performing the motion.
This approach is likely preferable to registering a figurative design, as it could potentially prevent third parties from using Cole Palmer’s image to a greater extent, given that he is personally depicted in the motion mark. However, protection for the celebration itself remains limited, as a third party could simply use another individual to perform the motion to advertise goods and services, which would likely fall outside the scope of the registration.
In a similar vein, Luke Littler is experimenting by registering his own face as a trade mark to obtain some protection.
AI and deepfakes
Why is the protection of his image, or any sportsperson’s or famous person’s image, so important? 30 years on from the birth of the internet, celebrities have learnt to be careful about the way they present themselves. However, with the rise of AI, celebrities can no longer control the way they are portrayed online.
Generative AI can manufacture or manipulate images exactly according to user prompts. Advances in technology mean that AI-generated images are now highly realistic, making it increasingly difficult to distinguish between real and generated content. AI-generated or manipulated media that convincingly depict events that never occurred and often involving real people are known as deepfakes.
The emergence of deepfakes has raised serious ethical concerns, as there are few limits to what can be portrayed, and such capabilities can be abused for harmful or inappropriate purposes. Beyond the risk of reputational damage, generative AI also facilitates the unauthorised commercialisation of a celebrity’s likeness.
Concerns are not limited to visual likeness. Scarlett Johansson, for example, has raised concerns that an OpenAI chatbot voice sounds eerie similar to hers after she declined to collaborate with the company.
Can you trade mark a face?
In light of deepfakes, it is understandable why Littler wants to protect his face from misuse, but will it work?
Under trade mark law in the UK, EU and US, a natural face cannot generally be registered as a trade mark, although a stylised likeness may qualify. The key hurdle is distinctiveness, as it is not considered possible for a photorealistic image of a human face to function as a trade mark or brand indicator. An important consideration here is whether a consumer would perceive the face as a brand in and of itself, the registry usually finding in the negative. Over the past decade, the EU IPO has received at least 80 applications for faces, but the majority were rejected due to a lack of distinctive character.
In 2020, Dutch model Maartje Verhoef’s application to register a figurative mark of her face was accepted, albeit this consisted of a simple black and white stylised representation of her face, rather than a photograph or full likeness. However, it was later successfully opposed by a third party due to a lack of distinctiveness based on the argument that her face was not a sign that could be used to distinguish her as a business for modelling services. Although Verhoef got further than most, the registry took quite a strict view here that even the stylised representation of her face was not sufficiently distinctive.
More recently, Matthew McConaughey filed clips of his voice, also with the intention to protect himself from manipulation by generative AI and unauthorised distribution. The clips have been registered at the US Patent and Trademark Office, and include his signature catchphrases.
Littler’s application is currently under examination at the UK IPO but will likely face the same distinctiveness issue, his application being a straightforward headshot. If objected to, Littler may also struggle to demonstrate acquired distinctiveness through use if his face has not already been used commercially as a badge of origin for particular goods and services, with his application covering a wide range of goods including jewellery, beverages and baked goods. If granted, the same issue would arise after five years when the registration becomes subject to proof of genuine commercial use.
Littler is also unlikely to be able to enforce widespread control over the use of his face. The scope of infringement is relatively narrow: the use must be identical or highly similar to the registered image. A figurative or stylised rendering of his face or even a photograph of him in a different context would likely fall outside of the scope of protection. In addition, trade mark infringement only arises when a mark is used in a commercial context as opposed to in a deepfake context where no products or services are being sold.
Image rights: is there another way?
Image rights refer to the ability to control how one’s image is used. They enable individuals to prevent others from using their name, likeness or distinctive personal features without permission. Littler’s application highlights the absence of a unified image rights regime in the UK and raises the question of whether legal reform is needed.
In the US, the “right of publicity” protects individuals against the unauthorised commercial use of their identity, including their name, likeness and other recognisable attributes. However, this right primarily protects economic interests and does not extend to reputational harm or derogatory use.
Last year, Denmark made history by becoming the first country to specifically protect’s one’s image and voice, challenging traditional concepts of intellectual property. By amending its copyright law, Denmark extended protection to individuals’ physical likeness. From 31 March 2026, all citizens have the right to request the removal of AI-generated content, seek compensation, and impose fines on platforms facilitating such use. It remains to be seen whether other European countries will follow suit, but this development may have a broader influence on jurisdictions such as the UK.
Trends in trade mark activity demonstrate that sportspeople are increasingly aware of their personal brand and the need to protect it, much like other celebrities. A carefully planned trade mark strategy is not limited to those who have launched separate commercial brands; it is relevant to any individual whose public profile may expose them to commercial exploitation.
The growing accessibility of generative AI and the rise of deepfakes complicate issues of consent and ownership, bringing the legal protection of likeness into sharper focus.
At present, athletes and celebrities have limited means of controlling how their image is used outside commercial contexts. However, trade marks remain one of the most effective tools for protecting their interests at least on a commercial level. While it remains to be seen whether Luke Littler’s application will succeed, it is a wise branding decision to look to obtain at least some trade mark protection within the existing system.
Wearable technology sits at the intersection between sensor hardware, advanced computing and health monitoring. The smart devices, designed with portability at the forefront, allow users to track their activity levels, sleep quality, heart rate and more, helping to inform their fitness routines, record their sports performance and monitor their general health.
The wearable technology market has expanded significantly throughout the twenty-first century, with new applications and technologies continuing to emerge. Estimated at $92.90bn in 2025, the market value is projected to reach $229.70bn by 2033. One of the industry’s biggest players, WHOOP, recently raised $575 million at a $10.1 billion valuation, demonstrating the popularity of wearable tech, as well as the potential for growth. WHOOP not only provides a fitness tracker, but also a comprehensive personal health platform, and other large companies and startups are following similar trends.
Encompassing consumer technology, health and design, wearable technology is a fascinating area for intellectual property (IP) strategy. Innovators in the space should aim to adopt a comprehensive approach to managing their IP, protecting their inventions, designs and brand to keep an upper hand in the increasingly crowded and rapidly developing landscape.
This article forms a series of articles celebrating this year’s World IP Day, on 26th April, for which the theme is “IP and Sports: Ready, Set, Innovate.”
Changing innovation in wearable tech
In 1998, Canadian engineer, Steve Mann, built what is considered by many to be the world’s first smartwatch. The Linux-powered smartwatch could wirelessly connect with mobile phones and computers, and was patented in 2000 (CA 2275784: “Wristwatch-based videoconferencing system”). Mann was proclaimed the “father of wearable computing” and his technology paved the way for the introduction of fitness-tracking wristwear like Fitbit, Apple Watch and Garmin Forerunner in the late 2000s and early 2010s. Innovation in the field has focused on improving the technology for optimal performance, including the battery life, sensor accuracy and data analytics.
More recently, the wearable technology market has been expanding beyond smartwatches to devices which are even more compact, or which can more accurately measure certain markers. Smart rings; patches which can be worn 24/7; fabrics with embedded sensors; and even “second skins”, designed to blend seamlessly with human skin, are all gaining traction. Engineers have also harnessed the power of AI, which enables the rapid processing of vast amounts of data, and provides an output of easily digestible results and individual insights.
As the form of wearable technology becomes more adaptable, scientists and companies have also been exploring its uses beyond fitness. Wearable technologies are being explored in the realm of medical devices, offering general health insights or dedicated to specific health conditions. For example, there are wearable devices which continuously monitor glucose, streamlining treatment for diabetics or provide information on the user’s metabolic health; wearable ECG and blood pressure monitors; devices which track ovulation or foetal activity; pain management wearables; and many more.
Startup companies leading innovation
We are proud to work with several clients who are pioneering in the wearable technology space.
ORB Innovations, for example, have created a first-of-its-kind, custom fit “smart” mouthguard which unlocks performance insights for contact and combat sport athletes. The mouthguard tracks heart rate, the intensity of the workout, the stress felt by the athlete’s body, responsiveness and mobility of movements, distance and impact, providing an over-arching and detailed analysis of the workout and empowering athletes with the data they need to reach their full potential.
Another client, Flowbio, is enabling users to monitor their sweat. Their sweat sensor is a device worn against the skin, built to analyse sweat as you train, measuring fluid and sodium loss along with other performance parameters. The data is connected directly with an app which transforms this data into clear, personalised hydration recommendations to unlock better performance for endurance athletes.
Navigating intellectual property in wearable tech
As the wearable tech landscape becomes increasingly competitive, it is of upmost importance for companies to protect their intellectual property, as well as ensure they are not infringing on other existing IP rights. Rapid developments in technology often mean that regular surveillance of the market is required. This can be helpful to monitor the activity of competitors, as well as identify under-patented areas which may signal white space for innovation.
There are many aspects to a wearable health-tracking device, often combining form and function, computing and physiology, which mean they can be complex to protect. A multi-faceted innovation requires a multi-faceted approach to IP strategy, bringing together different types of IP rights and approaches.
Patents
Patents protect the core technology behind the operation of a wearable device, including sensors, signal processing, calibration, artifact rejection and power management to name only a few. To obtain patent protection, the technology must be new and inventive. Typically, this means that the technology must include at least one new, non-obvious feature that confers an advantage to the device or software.
The integration of hardware and software is often a key characteristic of wearable technology, and it may be applicable for a company’s patent portfolio to cover both aspects. Despite common misconceptions, protection can often be obtained for AI or software-based inventions in the wearable technology field, for example, where the invention provides a technical solution to a technical problem.
For such computer-implemented inventions, an understanding of the relevant legal frameworks and tests is very important, particularly during patent drafting. Indeed, the law is constantly evolving to address the rapid development of software and AI technologies. For example, in the recent judgement of Emotional Perception, the Supreme Court decided that UK courts should no longer follow the previously used test for assessing whether a software invention is excluded from patentability, opening up the UKIPO to a change in approach for examining such inventions.
Our patent attorneys have extensive experience working with inventions in these fields and can help to advise on patentability of certain technologies. Please reach out here if you require any guidance.
Confidential information and trade secrets
Confidential information and trade secrets are other forms of IP which help a company maintain a competitive edge. However, both should be carefully managed to ensure they remain secret and retain their value. In wearable technology, examples of confidential information or trade secrets could include proprietary algorithms, machine learning model weightings, un-patented signal processing methods and manufacturing processes, to name a few.
No formal registration is required which means that this approach can be budget-friendly, however businesses should be aware of the risks if their valuable confidential information was to leak. Indeed, if a competitor could reverse engineer aspects of your technology by analysing your product, these aspects are unlikely to be suited to confidential information management or trade secrets, as once these aspects are known, they are no longer protected and their value is lost.
In practice, a blended IP strategy which leverages both patents and trade secrets in a strategic manner is often recommended.
Designs
Wearable devices are not just characterised by their function; the shape and appearance are often also very important, particularly for consumer devices. As users will be wearing them often, the appearance of a gadget may be an important consideration when choosing which device to purchase and can also be an important part of brand identity to the business.
The shape and/or appearance of a wearable device can be legally protected by design rights. In the UK, there are two main types of designs rights: registered design rights and unregistered design rights. Unregistered designs are automatically protected, however they are more limited in duration and only copying of the design is considered to be infringement. In comparison, registered designs require a formal application, but they provide more long-lasting protection and provide a monopoly right to the registered design, meaning they are typically easier to enforce. In addition to the shape and appearance of physical devices, the appearance of a graphical user interface display may also be protectable under registered design protection.
Branding
Another key aspect to wearable technology is the brand behind it. Wearables in the fitness industry are ultimately consumer devices and building a strong brand is an integral step to standing out in the market, as demonstrated by the popularity of WHOOP, Garmin and Fitbit, amongst others. Like the product, the brand also requires protection. This can be achieved through the registration of trade marks; for example, for the brand name and logo, as well as specific device names.
As wearable technology companies continue to grow and evolve, building a robust intellectual property strategy becomes increasingly complex, but also increasingly important. Businesses that take a proactive and strategic approach to IP, integrating patents, trade secrets, designs and trade marks from an early stage, will be best positioned to capitalise on innovation while safeguarding their competitive edge. Where technological advancement is rapid, a comprehensive and evolving IP portfolio is foundational to long-term success.
If you have any questions regarding IP strategy in relation to your business, please reach out to a member of our team.
The UK government’s renewed Women’s Health Strategy published this month is a welcome and meaningful step forward for women’s healthcare. Beyond the benefits this promises for patients, this strategy offers a real opportunity for founders and the wider femtech ecosystem.
More than just policy
For years, femtech has been underfunded and overlooked by mainstream healthcare infrastructure. However, it seems there is now a shift in focus recognising femtech as a high-growth sector worth supporting and investing in. Indeed, a recent report forecasts that the global femtech market will grow to $97 billion by 2030.
A key announcement in the strategy is a £1.5 million Femtech Challenge Fund, designed to accelerate adoption and development of women’s healthcare innovations, particularly those addressing healthcare inequalities. Although details of the fund are not yet known, it is due to be launched within two years and is likely to target technologies such as diagnostic tools, AI symptom checkers, wearables, digital therapeutics and medical devices.
The strategy also commits to establishing a Women’s Voices Partnership to bring organisations together to shape future policy, adding real value for UK-based founders and companies.
The Women’s Health Strategy represents an exciting opportunity through the capital being injected into the sector, as well as through shaping policy and in the procurement relationships and the commercial momentum that NHS-backed adoption can create.
The IP angle
Through our work with early-stage femtech companies at Mathys & Squire, we have seen first-hand the importance of getting an IP strategy in place from the outset. Founders can be taking practical steps now to take full advantage when the fund does launch, in particular to pre-empt two issues that we see too often:
- Disclosures – grant applications, public pitches and collaborations can be disclosure events that put your ability to protect your IP at risk, particularly if your product involves innovative technology. Disclosing details of your technology before applying for IP protection can potentially prevent you from protecting it in future, so speaking to a patent attorney early and putting in place a strategy for protecting IP and managing disclosures is key.
- Ownership – grant schemes such as Innovate UK or public health grants have specific terms around intellectual property ownership, particularly where NHS trusts or academic institutions are involved as partners or co-developers. It is important to take a proactive approach to IP ownership from the outset by ensuring that these terms are founder-friendly and clearly define who owns the IP. An unclear or unfavourable chain of IP ownership is a common red flag for investors and can be difficult and expensive to resolve later down the line.
The Women’s Health Strategy is good news for patients and for a sector that has long deserved more attention. As momentum picks up in the sector, founders who get the IP foundations right now will be better placed to compete for funding and NHS partnerships, and to retain the value of their important technologies.
For more information and advice on protecting femtech innovations, please contact us here.
Partner Claire Breheny and Trainee Trade Mark Attorney Tanya Rahman have been featured in The Trademark Lawyer magazine with their article, “No skimming the rules: how the Oatly case reshapes the terminology in a dairy-free and plant-based world.”
In February 2026, the UK Supreme Court ruled to invalidate Oatly’s trade mark, POST MILK GENERATION, after an enduring dispute between Oatly and Dairy UK. The court agreed with Dairy UK’s claim that the phrase violates Part III of Annex VII of EU Regulation 1308/2013 (which is now part of UK law). The Regulation states that dairy terms, such as “milk”, can only be used for products which are animal-derived.
The article analyses in depth the previous developments in Dairy UK Ltd v. Oatly AB, as well as the Supreme Court’s recent decision, and explores how this decision will shape branding strategies among plant-based products in the future.
Read the article in full here.
