Can you really patent that?

19 July 2010
To people outside the food industry, the idea of patenting food may seem ridiculous.  Some might even consider food patents a little unfair, given the fundamental importance of food to us all.  But many new food products are, in fact, patented. 

To be patentable, an invention has to be new and not obvious in light of what is already known.  Clearly, foods produced by combining traditional ingredients using standard cooking or preparation techniques are unlikely to meet these requirements.  So, the average cook has nothing to worry about!

However, innovations in food technology do often result in food products that qualify as patentable inventions. 

Some new food products are actually new chemical compounds themselves, for example, artificial sweeteners and fat replacements.  Dozens of patents, many now expired, were filed around the sweetening agent, sucralose, and the methods of producing it. 

Other food inventions are modifications of known food components.  These modifications improve the properties of the food components.  Examples include the encapsulation of fish oils to increase their stability, and the introduction of components, such as probiotics and other biologically active agents, to enhance the nutritional value of food.

Combining well known ingredients in a special arrangement gained Tip Top a patent for its Memphis Meltdown—a triple-dipped ice cream with a layer of caramel sandwiched between two layers of chocolate.   An innovative change in shape saw the inventor of the flat bottom taco shell awarded patent protection.

As well as patenting new food products, there is often valuable intellectual property in the methods by which food products are prepared.  While many methods are kept as trade secrets, patent protection fits better with some commercial strategies.  For example, you might choose patent protection if it’s not possible to keep the method secret. 

Although a patent will only provide you with a 20 year monopoly, there is no need to keep a patented method secret, making it easier to implement and licence to others.    In addition, competitors will infringe a patent to a new method, even if they have independently developed the method themselves.  Keeping your method a trade secret may not prevent competitors from using the method, if they manage to find out the secret. 

Many patents also relate to food packaging, where the packaging provides storage advantages or somehow improves delivery to the consumer.  One of the earliest examples is the drinking straw, patented in 1888. 

So, don’t assume that you need to invent a completely new food to be able to use the patent system.  All sorts of innovations in the food industry are potentially patentable.  Along with trademarks and trade secrets, patent protection can be a useful part of the intellectual property (IP) strategy you use to gain maximum commercial advantage from your IP.  Talk to a qualified IP professional for advice.

An edited version of this article was published in NZ Food Technology magazine, July 2010.

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