In my last article in Food NZ, I explored some advantages in seeking patent protection in the food industry. These include leveraging your position with licensing across different industries, using your patents to advertise your company and promote collaborations, and benefiting long term from your food innovation over the 20 year patent term.
Moving on, this article focuses on clever (and quite unexpected) ways we can use patents to protect new ideas which arise from R&D in the New Zealand food industry. As described below with stories to boot, a patent can protect:
- a “sweet spot” identified in your manufacturing process,
- a new commercial use of a known food product or process, or
- a synergistic effect when two or more components in a food/beverage product are combined.
I found a sweet spot!
The process of identifying a key range or condition within a process or product may be patentable, even if the basic elements are already known.
Mock case study:
Chocolate manufacturers, ChocoHeaven, stumbled across a particular temperature range between 65-72˚C to be used during a key processing step. This unexpectedly allowed fat to be reduced to less than 1% w/w without adversely affecting colour or taste. Previously, fat was removed at much higher temperatures, leading to poor taste and appearance – meaning consumer satisfaction and sales were low.
ChocoHeaven filed a patent application focusing on a) the key temperature range used in the method b) the resulting product and c) alternative uses for other similar products. ChocoHeaven used their patent rights to scare off a competing company who secured key knowledge from an ex-employee, thus maintaining a monopoly in New Zealand. Passive income has also been secured by ChocoHeaven as they developed licensing deals to non-competing companies in the cheese industry, who could also apply the same key process.
Typical evidence needed:
Showing the boundaries of what does and what doesn't provide the beneficial result(s). This can also help to prompt the inventor to consider other potentially useful conditions leading to greater improvements and possibly broadening the patent scope (e.g. cheese vs. chocolate).
New Use of a Known Product – Eureka!
A known product used in a new way can be patentable if the new use is unexpected.
Mock case study:
Feijoa peels are known to have an antimicrobial effect. Chris, who owns a start up chutney company in Hamilton, burnt his throat when prematurely trying his new concoction. When Chris gargled a pulverised blend of feijoa peels (they say necessity is the mother of invention!), his 3rd degree burns all but disappeared.
After confirming the use was new, Chris filed a patent application which focused on the initial concept, also covering a vast array of the potential products and method of treatments. With his patent filing in place, he then felt secure to contract work to a University group to identify what compound in the feijoa skins were providing the therapeutic effect. A further patent was filed to cover the compound’s use. A company was then launched which now successfully sells both naturally derived and synthetically developed burn medicaments for internal and external use.
The moral of this story is always keep your eyes and ears open – a new commercial use may be staring right at you!
Typical evidence needed:
Providing arguments why the new use would not be expected, and showing how the original product would not work well for the new use (if adaptations present).
A working interrelationship arising from the combination of two or more components that provide a new or unexpected result can be patentable.
Mock Case Study:
Coca Cola originally included a combination of caffeine and cocaine. Some people think the caffeine sensitised the neural pathways in the brain so that the cocaine gave a more significant effect. This provided quite an effective tonic for "nervous businessmen". Theoretically, this synergistic combination could have been patented.
Typical evidence required:
Showing the result of using individual components of the combination in comparison with the result of the synergistic combination itself (it is not necessary to understand the mode of action!).
Therefore, if your invention gives you a commercial advantage such as those I have outlined above, you should consider patent rights to leverage this advantage. Seeking advice from a patent attorney early in the development process means experiments can be carefully planned to provide both the supportive data needed for any patent application as well as proof of concept to needed to get potential inventors/collaborators on board.
Source: Food New Zealand