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.

The European Patent Office (EPO) has just published the new edition of their Guidelines for Examination that will come into effect from 1^st November 2018.

The Guidelines for Examination give instructions on the practice and procedure to be followed in the various aspects of the examination of European applications and patents in accordance with the European Patent Convention and its Implementing Regulations and is supposed to be followed by all European Examiners. Any changes to these Guidelines can therefore impact the action and conduct of Examiners in Europe. Key changes are outlined below.

Guideline changes

Alongside re-written sections on unity and a move towards more definitive language e,g. “should” changing to “is”, “must” and “needs to”, the Guidelines provide clarity on ongoing the question: what is technical with regards to computer-implemented inventions?

Perhaps most relevant to those working with AI and computer-implemented inventions is the creation of entirely new sections directed at, for example:

• cases where the invention is realised in a distributed computing environment;
• mathematical methods;
• artificial intelligence and machine learning;
• claims directed to methods of simulation, design or modelling; and
• programs for computers.

AI and Machine Learning

The entirely new section on AI and machine learning explains how AI and machine learning find applications in various fields of technology and includes patentable examples such as the use of a neural network for identifying irregular heartbeats. While the new section does list some exceptions to what might be considered technical (for example the classification of text documents solely in respect of their textual content), encouragingly it does indicate that “where a classification method serves a technical purpose, the steps of generating the training set and training the classifier may also contribute to the technical character of the invention, if they support achieving that technical purpose”. This suggests that claims directed to methods of training AI, and datasets for use in such training, are patentable. This may have important implications for those working, for example, in the field of drug discovery.

The addition of the new section on AI and machine learning appears to follow in the wake of the EPO’s first conference on patenting AI nheld in May 2018 where the challenges and opportunities of patenting AI were discussed. The amendments to the guidelines to include this entirely new section appear to be indicative of a more favourable approach to AI being adopted by the EPO, in line with the remarks of Grant Philpott, the EPO’s chief operating officer for ICT, when he highlighted that the patent system needed to work very hard to ensure
it remains an opportunity for innovation in AI.

Mathematical Methods

In particular, the new section on mathematical methods provides a number of helpful examples of technical purposes which may be served by a mathematical method to help support the presence of an inventive step. These include:

• separation of sources in speech signals; speech recognition, e.g. mapping a speech input to a text output;
• encoding data for reliable and/or efficient transmission or storage (and corresponding decoding), e.g. error-correction coding of data for transmission over a noisy channel, compression of audio, image, video or sensor data;
• encrypting/decrypting or signing electronic communications; generating keys in an RSA cryptographic system;
• optimising load distribution in a computer network;
• determining the energy expenditure of a subject by processing data obtained from physiological sensors; deriving the body temperature of a subject from data obtained from an ear temperature detector;
• providing a genotype estimate based on an analysis of DNA samples, as well as providing a confidence interval for this estimate so as to quantify its reliability; and
• providing a medical diagnosis by an automated system processing physiological measurements.

Similarities to the US

In some ways the inclusion of such examples in the EPO Guidelines is similar to the practice of the US Patent and Trademark Office (USPTO) issuing examples for evaluating claims for patent subject matter eligibility under 35 U.S.C. 101.  Many US patent practitioners working in this technical sphere already work to draft and prosecute their applications so that, at least in the minds of the Examiners, their patent applications will fall within one of these safe harbours. With the issuance of these new examples in the EPO Guidelines for examination, perhaps we will see the same being done by European patent attorneys.

What this means for Innovators

Whether these changes to the EPO Guidelines will make patenting AI and computer-implemented inventions as such easier in Europe is difficult to say yet.  At the very least, the changes should make prosecution of patent applications in these areas more predictable. Therefore it’s best to seek advice from experienced European patent attorneys at an early stage, so they can help draft and prosecute patent applications in these technical areas in a manner that will navigate these safe harbours and improve the prospects of obtaining patent protection in Europe.

This article was first published in Intellectual Property Magazine. 

Additional commentary from Andrew White is also featured in Global Data Review.

To discuss protecting the IP in your AI or other technical innovation, please contact our IT&E team today.

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: 

1. Patents provide protection for food/beverage products, manufacturing processes/recipes, machinery, packaging, nutraceutical uses, etc. 
2. Registered designs provide protection for aesthetic (non-technical) aspects of products, e.g. packaging or aesthetically-pleasing food products. 
3. Trade marks identify a product as being from a particular company.
4. 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.

On Thursday 25th October, the CJEU delivered a decision that puts beyond doubt, for the foreseeable future, that the duration of patent protection for medical devices cannot be extended by use of a Supplementary Protection Certificate (SPC).

The SPC system was introduced across Europe in the 1990s to enable the term of protection for pharmaceutical products to be extended by up to 5 years if there has been a delay in getting the product to market due to the marketing authorisation process. While the regulations were originally intended to cover only pharmaceutical products, there has been pressure over recent years to extend the scope of SPCs to medical devices, which can also face significant delays in CE approval, particularly when the device is provided in combination with a drug product.

However, this decision from the CJEU now puts beyond doubt any question of medical devices enjoying the same extended protection as pharmaceutical products under the current regulations.

While it seems unlikely that there will be any change in European regulations in the near future, this is one area where there is expected to be pressure on the UK after Brexit to provide more favourable extended protection provisions, so there may be further developments around the corner.

To learn more about SPCs, Brexit affecting your intellectual property or protecting your innovation, please contact Caroline Warren. 

Although there are some similarities between the way that US and European authorities uphold antibody patents, there are also some important differences.

Mathys & Squire partner, Monika Rai and managing associate, Juliet Redhouse, explore those differences in September’s edition of BioPharm. Their article outlines the European Patent Office’s approach to antibodies, including such variations as single-chain variable fragments (scFvs) and single-domain antibodies.

To download and read the article in full, please click here. To discuss patenting antibodies further, please contact Monika Rai or Juliet Redhouse.

Juliet has experience advising on supplementary protection certificates (SPCs) in multiple European jurisdictions and handles a wide range of subject matter in the fields of molecular biology, pharmaceuticals and biotechnology. She also has particular experience in the areas of antibody technology, vaccine technology, protein and peptide based medicines, recombinant gene expression, diagnostic assays and medical devices.

Following the launch of UK-US Science and Technology Agreement in September 2017 – aimed at strengthening research collaboration between the UK and the US – UK Science Minister Sam Gyimah has visited the US and announced further progress with research partnerships in medical technology.

The Minister confirmed that UK experts from the Life Sciences sector will visit Texas in November 2018 on a “fact-finding” mission, to investigate opportunities for innovation and to explore access to US markets for UK innovators.

17% of investment in UK research and development is financed from abroad. In view of this, and given the UK’s imminent departure from the EU, the UK Government is committed to keeping the UK connected to scientific advances being made around the world.

The recently agreed landmark ‘BioBridge’ collaboration between The Texas Medical Centre (TMC) and the UK Department for International Trade (DIT) is one example of such commitment.

As part of this  BioBridge collaboration, UK Life Sciences businesses will be able to be located at the TMC, where they will have access to advisors, investors and medical experts from both the TMC and DIT, enabling innovative individual projects and joint research in areas such as genomics and oncology.

Three UK companies have already made use of the BioBridge collaboration and healthcare trusts in Oxford, Cambridge and Manchester are also in discussions with TMC institutions regarding the formulation of partnerships.

Innovation within the Life Sciences sector is continually evolving however, as it is such a fiercely competitive industry, companies need to move fast to take products from promising ideas to market.

The Life Sciences team at Mathys & Squire comprises Patent attorneys experienced in working with a diverse range of clients; from university technology transfer organisations to international corporations. With degrees in subjects ranging from natural sciences and biochemistry to neuroscience, biotechnology and microbial technology – the team is recognised as having some of the leading practitioners in their field.

To learn more about our Life Sciences practice, please click here.

To download a brief background about the practice, please click here. 

To discuss protecting and commercialising your intellectual property and innovation, please email Managing Associate, Bethany Gibbs, via [email protected]. 

The UK Government published guidance on 24^th September outlining potential ramifications to trade mark and designs law should the UK leave the EU without an agreement in place – a ‘no deal’ scenario. The paper noted it was the duty as a “responsible government to prepare for all eventualities, including ‘no deal’”. To read the article in full, please click here.

The Mathys & Squire Trade Mark team understand that the goodwill in a brand can be the greatest asset a company owns and when managed carefully, that asset can be used to generate significant value in terms of revenue, market dominance and repeat product sales.

To learn more about our Trade Mark practice, please click here.

To combat the grey weather, London hosted its annual Design Festival, bringing some much needed colour to the city. The week long event showcased cutting edge designs and creations by artists, architects, interior designers and entrepreneurs across the city.

In honour of the Design Festival, we posted a series of Daily Design Dos and Don’ts on our Twitter page, sharing some top tips for protecting your designs, creativity and intellectual property.

Keep it confidential! Registered Designs should be sought before the design is publicly disclosed; otherwise this can preclude the opportunity to seek Registered Design protection.

Keep it cost effective. Under both UK and European Registered Design systems it’s possible to file several designs simultaneously in a multi-part application. The more you file, the lower the cost per design.

Keep designs protected. Registering a design in Europe and the UK is simple inexpensive and quick compared to other forms of intellectual property – plus there’s very little that cannot be protected by Registered Designs

Keep it clear and accountable. The first owner(s) of the intellectual property in a design is the original devisor(s) of that design.

Keep an eye on the calendar. The filing date of a Registered Design is critical. To remain in force UK & European Registered Designs must be renewed every 5 years.

Keep digi in mind. Registered Designs can be used to protect aesthetic aspects of digital products e.g. icons and aspects of graphical user interfaces (GUIs) – not just the external, physical product appearance.

Keep all your bases covered. Registered and Unregistered Designs are effective tools for protecting design aesthetics but should be used as part of a suite of IP rights e.g. trade marks, patents and copyrights.

To learn more about our Designs services, please click here or contact one of our attorneys on 0207 830 0000.

On 18 October 2018, Mathys & Squire Partner, James Pitchford, will be conducting an IP training day at the Cambridge Information and Intellectual Property Meeting (CIIPM), alongside CIIPM founders, Jane List and Stuart Newbold.

The topics covered will range from discussing the simple question – what is IP and why does it matter – to exploring the various types of IP protection available and the steps you can take to protect your creativity, ideas and innovation.

With information on patents, trade marks, copyrights and designs, the event will provide insights and tools to help protect and commercialise your IP portfolio alongside developing strategic business decisions.

For more information about the event, including ticket availability, please visit the CIIPM website.

James is a member of the European Patent Institute, a fellow of the Chartered Institute of Patent Attorneys (CIPA) and an active member of CIPA’s International Liaison Committee, through which he has represented the Institute overseas. James has significant experience working with entrepreneurs, start-ups, spin-outs and SMEs, alongside large corporations, research institutions and universities.

CIIPM – founded in 2015 by Jane List of Extract Information and Stuart Newbold of Patent Search & Information Management, Cambridge Information and Intellectual Property Meeting aims to provide a knowledge sharing space  a space for knowledge sharing and learning to those who work with information and commercialising IP. 

On 12 September 2018, the UK Government announced a new Agricultural Bill, setting out a major post-Brexit policy to replace the current subsidy system of Direct Payments to farmers based on the total amount of land farmed.

A new Environmental Land Management system will start from next year which aims to reward farmers and land managers in return for “public goods”, including better air and water quality, improved soil health, higher animal welfare standards, public access to the countryside and measures to reduce flooding. Those that provide the greatest environmental benefits will be rewarded with the largest payments, which is believed to lay the foundations for a Green Brexit.

Key aims

The Department for Environment, Food and Rural Affairs (Defra) has said that the Bill will be underpinned by measures to increase productivity and investment in R&D, including funding for research projects. As such, using the powers in the Agriculture Bill, Defra has pledged to:

• support innovation to improve productivity;
• improve investment in farming equipment, technology and infrastructure; and
• facilitate collaboration and pioneer the use of more innovative and efficient farming techniques.

A Defra policy statement has since served to highlight the priority of the Bill in enhancing food security based on strong domestic production, acknowledging that British farmers play a crucial role in the food chain and that this future policy will support farmers to provide more home-grown produce.

This comes at a time when concerns over global food shortages are steadily growing as current projected food production trends fall well short of the projected demand of a global population (expected to reach 9 billion by 2050), and when importation of food products from foreign countries may become more complicated for the UK following Brexit.

Why focus on agriculture?

Agri-Science was identified in 2014 as part of the UK Intellectual Property Office’s (IPO) “Eight Great Technologies” report as a robust and growing area for innovation in the UK. We have already had glimpses of a number of new technologies that are set to revolutionise traditional farming methods and potentially offer farmers and land managers a greater share of the rewards under the new system. The use of new technologies, including drones and robotics, farm management software packages, vertical farming, aquaponic farms for urban environments, gene-editing and biological pesticides, to name but a few, may become even more commonplace as farmers become further incentivised to improve their productivity and the extent they contribute to the “public goods”.

The Agricultural Bill thus appears to add additional impetus for further research and innovation in what has already been identified as a significant area of growth in the UK.

Mathys & Squire’s Agri-Tech team work with a range of businesses at the cutting edge of farming and food production. To discuss IP and Agri-tech, please call 0207 830 0000.

Michael Stott has worked in the patent profession since 2008 and has been involved in the drafting and prosecution of patent applications in the UK, Europe, and many overseas jurisdictions, including the US. Michael’s expertise span a wide range of technologies including electronic materials and devices, agrochemicals, petrochemistry, food chemistry and absorbent articles.