Trends in the food and beverage industry can move quickly, and food science and development is a vibrant field of technology with over £5.8bn of investment in 2024, and around 10,000 new products launched annually. Consumers are increasingly aware of their eating and drinking habits and often now pursue high-quality, sustainable alternatives to their favourite delicacies.
This results in a marketplace which, while exciting and innovative, is also competitive – and regularly contentious – in nature. Having the right protection in place for new recipes, manufacturing methods, packaging, supply chain innovation and branding is of critical importance to major food brands and small-scale innovators alike.
Intellectual property (IP) is an important consideration for any food science developer seeking to bring new goods to market. Here, we’ll take a look at the role of IP in protecting food science innovation: starting with the debate between trade secrets and patents.
The historical standard: trade secrets
Traditionally, the food and beverage sector has turned to trade secrets to protect the innovation at the root of their firm’s success. Think of Coca-Cola’s secret recipe, or the Colonel’s unique combination of 11 herbs and spices. Trade secrets have typically been employed to protect recipes and ingredient lists in household foodstuffs, rather than patents, owing to the potentially indefinite timeframe of protection they provide over the finite 20 years provided by a patent. To do so, manufacturers must cautiously guard their coveted secret recipes and processes, reinforced with non-disclosure agreements, non-compete agreements and robust physical and IT infrastructure.
As with Coca-Cola, the very fact that a recipe is kept as a trade secret can foster brand loyalty from consumers. Even though third-party products are unlikely to be that different, because reverse engineering in food recipes is far from impossible, some consumers can be fiercely loyal to a particular product.
However, maintaining secrecy around manufacturing processes and recipes is an increasingly challenging prospect in an interconnected world. Should a recipe or ingredients list be revealed to the public online, through the likes of corporate espionage or bad-faith competition, putting it back in the box is a near impossibility. Without the secret, there is no protection and competitors are free to create their own versions of a developer’s winning product.
Food science patents: from ingredients to recipes to packaging
Accordingly, patents are an increasingly prevalent tool protecting innovation in the food and beverage industry. Unlike a trade secret, a patent is a defensive right, whereby the specifics of an invention are made public in return for a monopoly right on producing that invention. Any products deemed to infringe on that patent can then be challenged legally and forced to amend their product or remove them from sale. Patents are particularly beneficial (in hindsight) where a new food product gains rapid popularity, and thus the business does not have the time to foster brand loyalty to a trade secret-protected food product.
In order to obtain a patent, Food developers need to define the invention at the heart of their innovation as succinctly as possible. This can be a challenge, given the esoteric nature of “inventing” within food and drink. Clarifying what exactly it is about a product or process that makes it unique (and what isn’t included within that specification) is vital to the robustness of a patent’s protection. A patentee needs to really understand the core of their innovation: what is the uniqueness about a recipe or formulation that makes it protectable?
- Is it the composition of the ingredients, or a unique ingredient within the recipe?
- The texture or sensation of eating it?
- The taste profile of the product as a whole?
- Or is it a novel production method or process step that yields a unique result?
Clearly defining the novel make-up of the product in question while writing a patent, as well as positioning the patent to ensure as much coverage as possible, assists with carving out market space in an industry in which competition (and copycat products) are hugely commonplace.
Nevertheless, food science is a busy area of patent law. Patents can – and have – been successfully secured for specific recipes, ingredient formulations, synthesised substitutes and chemical processes that make everything from the melt-in-the-mouth caramel in chocolate bars, to the luscious crema on an espresso, possible. Our client’s broad and successful portfolios pay testament to this with 75 grants for our major clients in this sector last year.
On the other hand, as evidence of how contentious the area can be, there are numerous Opposition and Appeal matters in this sector every year. Some examples of competitor patents successfully revoked by Boult for our clients include: EP3160247 for “reduced oil instant coffee”; EP3451849 for “Stevia chewing gum”; and EP2474234 for “foaming soluble beverage powder”.
Nor is the protection of patents limited to recipe creation: their functionality stretches to various aspects of food manufacturing, packaging and supply. If a manufacturer has created a unique way of producing a product, a novel process for extending a foodstuff’s lifespan, or a method that improves the safety or quality of a product, there may well be aspects of these processes that are protectable through a patent. Finding the elements of the process that are applicable for patent protection takes skill and out-of-the-box thinking, but there is the case law in place to support patents for a wide spectrum of food science innovation.
Conclusions
For an industry as innovation-focused as the food science sector, IP is an essential consideration for any developer, first-time manufacturer or global brand alike. Relying on trade secrets – especially in an increasingly connected world, where maintaining privacy is a challenge – may not be the most prudent approach. Patents, instead, are a vital ingredient in protecting the creativity and commercial success of food science developers, from ingredient formulation to recipes to manufacturing methods.
Boult’s considerable food and drink practice advises clients on bringing their innovation to market and protecting it once it’s on the shelves. Find out more about our work here.
In addition, if you are bringing food innovation to market and want to discuss trade marks as part of your IP strategy, read more about the work of our industry-leading trade mark team here.
