Mathilde Do Chi is the CEO of Vegan Food Law, a food law and regulatory consultancy in global alternative protein regulations. She is an
In this fourth installment of this special series, Mathilde discusses the limitations and dangers around patents in food innovation.
Why Patents Are Not the Solution for Protecting Food Innovation
In the realm of food innovation, the question of how best to protect novel ideas and creations arises. Having worked with a lot of investors ranging from private angels to VCs, I have noticed that whether a company has a patent makes the company more attractive to them. However, even though patents are commonly construed as the best intellectual property protection, it is crucial to recognize that patents may not always be the ideal solution for safeguarding food innovation. This article delves into the limitations and challenges surrounding patents as a means of protection in the context of the dynamic and complex food industry.
1. Limited scope and short duration
One significant limitation of patents in the food industry is their limited scope and relatively short duration of protection. Patents grant exclusive rights to the inventor for a specified period, typically 20 years in most jurisdictions, after which the invention enters the public domain. In the fast-paced and ever-evolving food sector, where product life cycles are often short, this limited timeframe may not provide adequate protection for food innovations. By the time a patent is granted, the market landscape may have changed, rendering the protected invention less relevant or commercially viable.
Moreover, patents remain territorial rights meaning that they are only valid in the jurisdictions where they were granted.
2. Difficulty in patentability
Food innovations, particularly those involving recipes, ingredients, or culinary techniques, can face challenges in meeting the patentability criteria. At their core, patents must meet three criteria to be granted, meaning the invention has to be novel, non-obvious, and have industrial applicability. In the case of food, it can be challenging to establish the novelty and non-obviousness of certain creations, as there is a long history of culinary traditions and existing knowledge. Moreover, the patent system generally does not accommodate the protection of subjective qualities like taste, texture, or flavor, which are critical aspects of food innovation.
Last but not least, it is crucial to understand that claims related to the invention must be narrowly defined. It is unlikely that broad product claims can be obtained due to the vast quantity of prior art describing the use of microbes for dairy precision fermentation ingredients. For proof, Perfect Day was challenged in 2023 by an anonymous petitioner because its production process was already used in the conventional dairy industry.
3. Cost and complexity
Obtaining and enforcing patents can be an expensive and complex process that should definitely be handled by legal professionals. Filing fees, attorney fees, and maintenance costs can add up, particularly when seeking protection in multiple jurisdictions. Food innovations often involve a combination of ingredients, processes, and packaging, making it challenging to define the claims and boundaries of patent protection. The need for technical documentation, prior art searches, and legal expertise further amplifies the complexity and costs associated with obtaining and defending patents.
4. Disclosure and loss of trade secrets
Patent applications require detailed disclosure of the invention, which becomes publicly available once the patent is granted. This disclosure can jeopardize the protection of trade secrets, as competitors can study the patented innovation, reverse-engineer it, or develop similar products that work around the patented claims. For food innovators, trade secrets, such as unique recipes, proprietary processes, or specialized techniques, may hold greater value and provide a competitive edge that is difficult to replicate. For instance, Heura explained in a 2022 interview that trade secrets were preferred over patents for some of their innovations.
5. Industry collaboration and open innovation
The food industry thrives on collaboration, collective knowledge, and open innovation. Restrictive patent protection can impede the exchange of ideas, limit collaboration opportunities, and hinder the progress of food innovation. Many advancements in the food sector are built upon shared knowledge, iterative improvements, and the cross-pollination of ideas. Alternative models, such as open-source initiatives, partnerships, and industry standards, can foster innovation through collaboration while still providing mechanisms for fair competition and recognition.
Conclusion
While patents have their place in protecting certain types of inventions, they may not be the optimal solution for safeguarding food innovation. The food industry’s unique characteristics, including rapidly changing trends, subjective qualities, and collaborative nature, present challenges that patents alone cannot adequately address. Embracing alternative approaches that balance protection, collaboration and open innovation can foster a vibrant and dynamic food innovation ecosystem.
Learn more about Mathilde’s work at veganfoodlaw.com
