Food technology

Food tech companies and investors – the value of analyzing the intellectual property landscape

Case study – innovation on alternative fats

Many companies and investors are aware of the importance of identifying and protecting their innovations, and in particular the importance of obtaining patents to prevent others from using their technology and to secure a competitive advantage.

However, intellectual property goes beyond protecting a company’s own inventions. Awareness of third party intellectual property is equally important and an understanding of the intellectual property landscape in a particular area can reveal a wealth of valuable information for the benefit of companies and investors:

1. Patentability & validity

Assessing the patent landscape before filing a patent application will give an idea of ​​the relevant prior art in the field, i.e. what has already been described in the patent and non-patent literature. This is useful for assessing novelty and inventive step; two conditions that must be met for a patent to be granted, and allows for an efficient drafting process and a patent application potentially in a better position from the outset.

For those considering investing in or acquiring patented technology, an idea of ​​the patent landscape and relevant prior art will be important in determining the likely scope of protection available for a pending patent application. and the strength of a granted patent in the face of possible challenge by third parties. . Additionally, if there are third-party patents that impede intended business activities, a prior art search to identify documents that may invalidate those patents could yield a valuable negotiating tool or weapon to be used. in a potential dispute.

2. Freedom to operate

Before commercialization, a company and its investors will want to be sure that they do not risk infringing a third-party patent by launching their product or exploiting their process. To do this, a Freedom to Operate (FTO) search must be performed. For various reasons, which we have not discussed for the sake of brevity, the subject matter of an FTO search is different from a prior art search.

Although an FTO search does not guarantee the identification of every patent or patent application that may pose a threat, it is important for detecting the most relevant documents and will give companies and their investors an indication of the level of risk involved. to the proposed business activity. company.

3. Technical Inspiration

With over 3.3 million patent applications filed in 2020[1], the patent literature also provides an underused research tool: a wealth of technical information that may not have been published elsewhere. In order to satisfy the legal requirement of sufficiency of disclosure, patent specifications must describe in detail the inventions they claim, often including experimental methodology detailing how to make and use the technology. Therefore, a panoramic search of the patent literature can often reveal valuable information that companies can use to help solve technical problems.

Case study – alt fat landscape research

Company A, an innovator in the field of meat substitutes, faces the problem of replacing animal fats without compromising the taste and texture of its products. To facilitate its research, the company performed a panoramic search of the patent literature to identify potential solutions. The research identified three approaches that others have adopted in response to similar issues:

(i) Emulsions and gels

The search revealed a number of papers describing the use of emulsions and gels to reduce the fat content of foods and produce healthier alternatives. In particular, the search identified patents relating to oleogels – semi-solid systems in which a continuous oily phase is immobilized in a network structure – including issued patent EP3387909B1 which describes the immobilization of a liquid oil using of structures formed by the combination of monoglycerides and high-melting fats. Although this patent does not relate specifically to meat substitutes, it is generally concerned with the concept of reducing saturated fat in foods by giving the oil the organoleptic properties of solid fats. Thus, Company A should carefully analyze this patent if it was considering incorporating similar technology into its meat substitute products.

The claims of the granted patent suggest that the technology may have been around for some time since the scope of the claims to the oleogels themselves appear to be quite narrow. If company A decides to use oleogels in its products, it will have to design around the claims of EP3387090B1. Additionally, any patent application filed by Company A for its own oleogel product may end up narrow in scope given the state of the art.

(ii) Oils and fats derived from microbes

Landscape research has also identified companies that use engineered microbes to produce custom oils and fats. The identified patents have claims to the microbes themselves, methods of producing oil using the cells, and oil compositions. Often in these types of patents the scope of protection is defined in terms of the enzyme used in the microbe that produces the oil and/or the fatty acid profile of the resulting oils. This tells Company A that third-party companies can already enjoy relatively broad protection for recombinant fat-producing cells, making it more difficult for competitors to design around the intellectual property.

If Company A chooses to use artificial microbes, it must conduct a more detailed analysis to assess the risk of marketing harm in this area.

(iii) Cultivated fat

The search also revealed patent applications aimed at overcoming the disadvantages of vegetable fats by growing fat tissue. The state of the art cited by the patent offices against these patent applications suggests that the field of fat culture is newly developed. For Company A, this could mean less competition if it decided to develop its own cell culture process, although it would have to avoid any claims granted in existing patents to avoid possible infringement.

The landscape research thus informed Company A not only of the various technologies that could be used to replace animal fats, but also provided valuable information on companies already operating in the field of alternative fats, the existing intellectual property that the Company A should avoid when developing its own products and the types of claims that Company A might be able to obtain in the future for its own innovations. Once Company A has decided on an approach to developing its own fat substitutes, it would be advisable to conduct further more targeted FTO research and monitor any pending applications that may be relevant to Company A’s business activities. company A.