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The food and drink industry is jam-packed full of ideas, innovation, research, development and most importantly – intellectual property. Ahead of attending Food Matters Live and sponsoring Food Tech Matters this year, individuals from our food and beverage team have drafted a four-part miniseries which explores IP in the food industry, the types of protection available, and benefits to your business.

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

Beyond trade marks, protectable intellectual property 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?

Author: David Hobson  |  [email protected]

2. Ripe for the taking: why brand protection is key in the food industry

The food and drink sector was arguably the first sector to recognise the importance of brand protection: the very first UK trade mark application was filed in relation to beers – the Bass triangle back in 18766. Since then, this competitive and innovative industry appears to have really grasped the importance of packaging, get-up and branding. Building a successful and recognised brand can be challenging and many companies often invest heavily in the initial brand creation, development and promotion before realising that legally they cannot use that branding without facing court action. How can companies avoid this?

Author: Laura West  |  [email protected] 

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

The search for a competitive edge in this industry has led 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. There is also the added pressure to keep abreast of (or stimulate) the latest consumer trends, such as the rise in vegetarianism, veganism, interesting new alcohol-free drinks, healthier versions of comfort food, the use of AI within the food industry, as well as meeting the requirements of new governmental policies.

Producing food and drink products which meet of all these requirements can provide companies with a competitive advantage however the question remains: how can this advantage be maintained and how do companies prevent competitors reaping the rewards from their research and investment?

Author: Laura Clews  |  [email protected] 

4. Ensuring you don’t bite off more than you can chew: navigating third-party intellectual property rights

Protecting intellectual property by way of patents and registered design rights is currently under-exploited in the food industry. However, there are certainly a few businesses building broad IP portfolios encompassing numerous aspects of their operations, such as the food products and recipes themselves, factory machinery, and even food packaging. Other articles have explored the benefits of protecting your IP – but what about the IP of others?  How can you minimise the risk of a competitor preventing you bringing your product to market? 

Authors: David Hobson & Lionel Newton  |  [email protected] & [email protected]

From chemistry, composition and ingredients to trade marks, packaging, patents and designs – we have the expertise to help identify, protect and commercialise your IP. Call 0207 830 0000 to talk to a member of the team. To read more about our work in the food and beverage sector, please click here.

During recent years, we have become much more aware of the destructive impact that our industrial activity has at a global scale. From microplastics and chemicals polluting our oceans to the amount of CO2 we release into the atmosphere, our efforts to support the needs of an ever-growing population are rapidly changing our ecosystem.

The urgent need to change how we make things has perhaps affected the Fashion Industry more than most. As ever-tightening regulation forces brands and manufacturers to change their requirements, there has been an increasing demand for new solutions to change the way that fabrics are made.

One company that is starting to attract serious attention on the global stage is the UK-based company, “Colorifix”.

Colorifix convert agricultural by-products into pigments and dyed fabrics using synthetic biology. Driven to help the textile industry, and at the same time reduce environmental impact, the team at Colorifix have programmed microorganisms to produce and apply pigments to fabrics, but with “No acids. No solvents. No alkalis.”

Their new biologically driven way of dyeing fabric could potentially save billions, if not trillions of litres of water as well as completely removing toxic chemicals from the dyeing process around the world. Innovators such as Colorifix need to navigate a complex value chain and create an effective international strategy to protect their intellectual property and maximize the application of their technology.

Dr Craig Titmus, patent attorney and Partner at Mathys & Squire LLP commented that: “Against a backdrop of highly polluting processes in the textiles industry, Colorifix have developed a truly disruptive technology that has the potential to revolutionise fabric dying practices across the world. I have had the good fortune to work closely with the team at Colorifix, to gain a detailed understanding of their synthetic biology, and to help devise an intercontinental IP filing strategy that is bespoke to their commercial objectives. With a ground-breaking technology and a refined commercialisation strategy, Colorifix are going from strength-to-strength, and it has been a real pleasure to have played a part in their success story”.

Dr Orr Yarkoni, CEO of Colorifix Ltd. commented, “without any shadow of a doubt, we knew we needed good legal advice moving forward. It’s such a big challenge and there’s no way we could have done it ourselves. Engaging Mathys & Squire LLP was definitely the right move. I was really impressed with the level of understanding and care with which our process has been handled, especially given the complexity of integrating biotechnology in an entirely new manufacturing process. Craig Titmus (Partner responsible for our IP portfolio) has been a life saver on more than one occasion and has always been willing to pick up the phone, even whilst on holiday.”

To discuss protecting the IP in your technology – textile or otherwise – please get in touch via our Contact Us page or email one of our attorneys. 

The EPO has again topped the rankings of the world’s five largest patent offices by users for the quality of its patents and services in Intellectual Asset Management (IAM) Magazine’s 2018 survey.

In contrast, the U.S. patent system has fallen to 12th place in the US Chamber of Commerce’s Global IP Index for 2018, continuing a six-year downward trend in its patent ranking, which the US Chamber has attributed to a patent system that currently creates “considerable uncertainty for innovators”.

Click the image below to read Michael Stott and Sean Leach’s whistle-stop tour of the approaches taken to patent eligible subject-matter requirements at the EPO and USPTO plus considerations, from the European perspective, as to whether there are any signs of increasing convergence in the European and US approaches.

This article was first published in The Patent Lawyer Magazine. To read an online version, please click here, 

To discuss eligibility examination in more detail, please contact Michael Stott – [email protected] or Sean Leach – [email protected].

CIPA Article Image

Mathys & Squire Of Counsel, Hazel Ford, will once again be joining a panel of patent attorneys in an encore webinar discussing: Antibody Patenting after Amgen v. Sanofi: U.S. and European Perspectives followed by a live question and answer session. 

The panel will examine the patentability requirements in the USPTO and EPO for claiming a broad genus of antibodies, recent case law that could impact those claims, and how to best protect antibody inventions in light of the latest developments. Topics of discussion will include: 

Book your place by clicking here.

Thursday, December 20th 2018

1:00pm-2:30pm EST | 18:00 – 19:30 GMT

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.

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 1st 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:

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:

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?

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.

BioPharm

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.