This article analyses EPO filing, grant, and proceedings data on foodstuffs (as defined by the IPC classification A23*).
The foodstuffs area is an example of a “Fast Moving Consumer Goods” (“FMCG”) industry, in which products are typically sold for relatively low cost, but in large quantities. It is apparent from the data that such sectors are highly competitive, and thus worthy of patent protection, perhaps due to the need to maximise profit and return on R&D investment on products that typically have low profit margins per unit sale.
As has been well documented elsewhere, EPO activities were significantly affected by COVID-19, either through reduced filings or lower numbers of oppositions being concluded, in the absence of in-person opposition oral proceedings and low initial uptake of video conference oral proceedings.
The annual data for 2020 may therefore represent an outlier compared to previous years, and so the data presented in this article is an amalgamation of 2019 and 2020 together, the last two full years for which information is more or less complete.
The IPC A23 (and all sub-classes) relates to “Foods or Foodstuffs; Treatment Thereof, Not Covered By Other Classes” [see appendix]. It covers preserving, dairy products, edible oils or fats, coffee, tea, cocoa and cocoa products, and protein compositions such as plant-based meat products.
Although granted foodstuff patents only account for about 1% of all granted patents, opposed European patents in IPC A23 generally account for around 4% of all opposed patents.
Seen from another perspective, only about 3% of all granted European patents are opposed but around 10% of granted foodstuff patents are opposed. This spike in opposition activity suggests a competitive commercial landscape and warrants further investigation and analysis.
Analysis of the landscape indicates a growing interest in plant-based meat and dairy substitutes as well as “nutraceuticals” - foodstuffs or dietary supplements that are alternatives to pharmaceutical medicines but which claim to have physiological properties. This may go some way to explaining the numbers of filings in this area and the increase in opposition activity.
Looking initially at new applications and focusing on 2019 and 2020 (the last two full years for which information is more or less complete), around 3,800 new foodstuff applications were published. These foodstuff applications belonged to about 1,700 different applicants. The top 25 applicants accounted for a quarter of all foodstuff applications while the top 100 applicants accounted for over 40% of all foodstuff applications. The top 50 applicants and their filing numbers are shown in Table 1 below.
Table 1: Top applicants in A23* in 2019 - 2020
Within the 3,800 published applications in this time period (2019/2020), 3% relate to “meat-substitute” or “plant-based” inventions.
While absolute numbers (120 published applications) might be considered low for 2019/2020, it is noteworthy that this corresponds to approximately the same number of applications filed in this area across all years up to 2019, suggesting that this also is an area of increased activity and expansion.
The top 25 applicants in this sub-group are shown in Table 2 below.
Table 2: Top applicants in A23* for “meat-substitute” or “plant-based” filings (2019 – 2020)
Looking at the numbers of granted patents in the same time period, 2,470 foodstuff patents were granted. These patents belonged to around 1,100 different owners. The top 90 or so patent proprietors accounted for about half of those patents, with the top 50 shown in Table 3 below.
Table 3: Top patent owners in A23* in 2019 - 2020
In 2019 and 2020 taken together, foodstuff patents opposed accounted for 4.3% of all oppositions, but foodstuff patents granted accounted for just less than 1% of all patents granted. This suggests that over four times more foodstuff patents were opposed than might have been expected.
The 286 foodstuff patents opposed in 2019 and 2020 belonged to around 120 different patent proprietors. The top four patent proprietors owned about one-third of all opposed foodstuff patents. The top 38 patent proprietors owned more than two-thirds of all opposed foodstuff patents, with each of those patent proprietors having at least two of their patents opposed in 2019 and 2020. The top 22 are shown in Table 4.
Table 4: Top proprietors receiving oppositions in A23* in 2019 - 2020
The 286 opposed foodstuff patents were subject to 399 oppositions, an average of 1.4 oppositions per opposed patent. The 399 oppositions were filed by around 120 different opponents. The top four opponents accounted for one third of all the 399 oppositions. The top 28 opponents filed two thirds of the 399 oppositions. The top 27 opponents are show in Table 5.
Table 5: Top opponents in A23* in 2019 - 2020
The companies most actively involved in foodstuffs oppositions in 2019 and 2020 are often involved both as opposed patent proprietor and as opponents. If “overall opposition activity” is taken as the sum of patents opposed and oppositions filed, then total opposition activity in relation to foodstuffs patents was 685 (286 patents opposed plus 399 oppositions filed).
The dozen or so companies most actively involved in foodstuffs oppositions (as proprietors of opposed patents and/or as opponents) account for half of total opposition activity in relation to foodstuffs patents and are shown in Table 6.
Table 6: Most active opposition parties in A23* in 2019 - 2020
In 2019 and 2020, oppositions to 244 foodstuffs patents were finally decided. This amounted to 3.7% of all oppositions decided in 2019 and 2020.
Table 7: Opposition outcomes in A23* in 2019 - 2020
Over the two years, 2019 and 2020, the outcome of a finally decided opposition to a foodstuff patent was rather more likely to be “patent revoked” than it was the outcome of all finally decided oppositions, as can be seen from figures 1(a) and 1(b).
A final decision on an opposition may be a first instance decision made by an opposition division of the EPO if no appeal is entered against the first instance decision. If an appeal against the first instance is entered and not withdrawn, the final decision is that of a board of appeal of the EPO.
In 2019 and 2020, oppositions to six foodstuffs patents were withdrawn before any decisions on the oppositions to the patents were issued. In nine cases, the owners of foodstuff patents indicated that they would not approve any text for the patents concerned, effectively “self-revoking” the patents before any first instance decision on the oppositions to the patents.
In 2019 and 2020, first instance decisions on oppositions to 114 foodstuff patents became final without appeals being entered with the proportions of different outcomes shown in figure 2.
In 2019 and 2020, appeals were entered against first instance decisions on oppositions to 115 foodstuffs patents but in 57 cases the appeals were withdrawn before any appeal decision was made. The first instance decisions became the final decisions. Figure 3 incorporates these 57 cases into the data of figure 2.
In 58 cases, appeals entered against first instance decisions on oppositions to foodstuff patents were not withdrawn. In one of those cases the patentees indicated that they would not approve any text for the patent concerned, effectively “self-revoking” the patent. In two other cases, in which the decisions on appeal were to maintain the patents in amended form, the patentees did not pay the relevant fees, effectively “self-revoking” the patents concerned.
The appeal decisions made in the remaining 55 appeals differ considerably from the first instance decision starting points of the appeals as can be seen in figures 4 and 5.
First instance decisions “opposition rejected” (only the opponents can appeal) are relatively infrequently confirmed on appeal. First instance decisions “patent revoked” (only the patentees can appeal) are most often confirmed. First instance decisions “patent amended” (either or both opponents and patentee can appeal) are often revised on appeal. Overall, appeal decisions broken down by first instance decision can be seen in Table 6.
While the Boards of Appeal have not been able to dispose of as many cases in 2019 and 2020 as in previous years, the following cases relating to foodstuffs confirm that important points of law arise from this fast-moving sector.
This appeal was against a decision from an Examining Division to refuse European application 10718590.2 (concerned with prevention and treatment of allergic diarrhoea) on the grounds that the claimed subject matter was 100% identical to the subject matter of European patent 2 251 021 granted on the application from which EP10718590.2 claimed priority.
The interlocutory decision from the Board of Appeal Decision was published in February 2019 and is noteworthy for its referral to the Enlarged Board of Appeal. The subsequent Enlarged Board Decision G4/19 was issued in June 2021, but it is nevertheless discussed here as the referral came about in 2019. G4/19 held that:
1. A European patent application can be refused under Articles 97(2) and 125 EPC if it claims the same subject-matter as a European patent which has been granted to the same applicant and does not form part of the state of the art pursuant to Article 54(2) and (3) EPC.
2. The application can be refused on that legal basis, irrespective of whether it
a) was filed on the same date as, or
b) is an earlier application or a divisional application (Article 76(1) EPC) in respect of, or
c) claims the same priority (Article 88 EPC) as the European patent application leading to the European patent already granted
Since the claims of EP10718590.2 under appeal and those granted on EP 2 251 021 were “100% identical”, the Enlarged Board did not avail itself of the opportunity to provide clarification as to what was meant by “the same subject-matter” in its answers to the referred questions. There is therefore still some uncertainty as to how conflicting claims of overlapping scope, or of narrow or specific embodiments wholly within the scope of a broader claim, are to be treated.
Claim 1 as granted underlying the appeal in T1218/14 related to a process for the preparation of a beverage, a beverage base, a beverage concentrate or a beverage additive having a reduced prolamin content.
The decision includes some interesting points of interpretation of what is meant by the terms “beverage”, “beverage precursor”, “beverage base”, and “beverage additive”, but also discusses why an invention can be inventive in view of a secondary prior art document when that document is not an “accidental anticipation” for novelty purposes.
Prior art document D1 related to the separation of wheat flour into one gluten fraction and at least one other fraction, and included examples to liquefied and saccharified syrup products. The Board held these products represented “beverage additives” even though D1 was not concerned with beverages, so that D1 could not be considered an accidental anticipation.
The appellant proprietor’s attempt to introduce an undisclosed disclaimer based on the method of D1 thus contravened Article 123(2) EPC. However, a later claim request limited to the preparation of “a beverage” was held to be inventive, with the Board explaining that D1 was not a promising springboard for assessing inventive step (being silent on beverage production), but taught away from the claimed invention when used as a secondary document.
The Board in T1218/14 stated:
In view of this, the requirement in G 1/03 that an accidental novelty-destroying disclosure has to be completely irrelevant for assessing inventive step is to be understood not as an alternative, or additional criterion, but as a consequence of the criterion that, from a technical point of view, said disclosure is so unrelated and remote that the person skilled in the art would never have taken it into consideration when making or working on the invention.
Consequently, if this criterion is met, it follows that said disclosure is completely irrelevant for assessing inventive step. However, not meeting said criterion does not necessarily imply the opposite, namely that the disclosure in question will contribute to a finding that inventive step is lacking.”
The above data and analysis confirm that the foodstuffs industry is not only highly innovative, but particularly contentious, with more oppositions being filed than would be expected based on the number of patent applications and granted patents and the EPO-wide average.
The foodstuffs industry is expanding into nutraceuticals and healthcare, and plant-based meat substitute products as growing markets.
Whichever industry a business is in, these statistics based on EPO filings are a key reminder of the importance of intellectual property to maintain a competitive advantage, with patent filings forming a central pillar of the business’ commercial strategy.
David Hammond is a UK/European patent attorney and partner in Haseltine Lake Kempner's chemistry and life sciences patent department. He advises on inventions in different fields in the healthcare sector. For more information on patent strategy, whether filing, prosecution or opposition, and utilizing patent analytics as a business intelligence tool, please contact David Hammond or your usual HLK contact.
Identification of “foodstuffs” (applications, patents, opposed patents) is here based on IPC class A23:
FOODS OR FOODSTUFFS; TREATMENT THEREOF, NOT COVERED BY OTHER CLASSES
A23B PRESERVING, e.g. BY CANNING, MEAT, FISH, EGGS, FRUIT, VEGETABLES, EDIBLE SEEDS; CHEMICAL RIPENING OF FRUIT OR VEGETABLES; THE PRESERVED, RIPENED, OR CANNED PRODUCTS
A23C DAIRY PRODUCTS, e.g. MILK, BUTTER, CHEESE; MILK OR CHEESE SUBSTITUTES; MAKING THEREOF (obtaining protein compositions for foodstuffs A23J 1/00; preparation of peptides, e.g. of proteins, in general C07K 1/00)
A23D EDIBLE OILS OR FATS, e.g. MARGARINES, SHORTENINGS, COOKING OILS (obtaining, refining, preserving C11B, C11C; hydrogenation C11C 3/12)
A23F COFFEE; TEA; THEIR SUBSTITUTES; MANUFACTURE, PREPARATION, OR INFUSION THEREOF
A23G COCOA; COCOA PRODUCTS, e.g. CHOCOLATE; SUBSTITUTES FOR COCOA OR COCOA PRODUCTS; CONFECTIONERY; CHEWING GUM; ICE-CREAM; PREPARATION THEREOF [2006.01]
A23J PROTEIN COMPOSITIONS FOR FOODSTUFFS; WORKING-UP PROTEINS FOR FOODSTUFFS; PHOSPHATIDE COMPOSITIONS FOR FOODSTUFFS
A23K FEEDING-STUFFS SPECIALLY ADAPTED FOR ANIMALS; METHODS SPECIALLY ADAPTED FOR PRODUCTION THEREOF
A23L FOODS, FOODSTUFFS, OR NON-ALCOHOLIC BEVERAGES, NOT COVERED BY SUBCLASSES A21D OR A23B-A23J; THEIR PREPARATION OR TREATMENT, e.g. COOKING, MODIFICATION OF NUTRITIVE QUALITIES, PHYSICAL TREATMENT (shaping or working, not fully covered by this subclass, A23P); PRESERVATION OF FOODS OR FOODSTUFFS, IN GENERAL [2006.01]
A23N MACHINES OR APPARATUS FOR TREATING HARVESTED FRUIT, VEGETABLES, OR FLOWER BULBS IN BULK, NOT OTHERWISE PROVIDED FOR; PEELING VEGETABLES OR FRUIT IN BULK; APPARATUS FOR PREPARING ANIMAL FEEDING-STUFFS (machines for cutting straw or fodder A01F 29/00; disintegrating, e.g. shredding, B02C; severing, e.g. cutting, splitting, slicing, B26B, B26D)
A23P SHAPING OR WORKING OF FOODSTUFFS, NOT FULLY COVERED BY A SINGLE OTHER SUBCLASS