Introduction
When discussing my profession, particularly with those outside of intellectual property, I often mention that I am involved with food related inventions. It is not uncommon for there to be surprise at the idea of patenting food. It is possible that this stems from the simple idea that food ingredients are generally well-known and widely used, making it appear as though new inventions are limited when compared to the likes of pharmaceutical or high-tech industries.
Whilst it might seem as though the food and beverage field is limited to basic ingredients that have been used for centuries, innovation is actually thriving. This is because advancements often focus on how these familiar ingredients are combined to provide unique formulations, or how they are processed or applied to provide unique product characteristics. These may in turn offer improved consumer experiences, nutritional benefits, and/or environmental sustainability, and the solutions to these problems are indeed patentable.
For instance, new formulations are constantly being developed to address dietary needs, such as gluten-free, plant-based, or allergen-free products, often requiring novel ingredient combinations or processing methods to achieve desired flavours and textures. Innovations also extend to functional foods and beverages that provide added health benefits, such as reduced-fat, additive-free, or slow-release carbohydrate products, all whilst needing to maintain the organoleptic properties that consumers expect.
Beyond formulation, technical processes for food preservation, shelf stability, and packaging are continually evolving to reduce waste, and enhance sustainability. Advances in processing technology offer new ways to maintain nutrient integrity, extend product lifespan, and/or improve the energy efficiency of manufacture, without compromising on product quality.
In short, food and beverage innovations go far beyond creating new ingredients per se, such as in the bioengineering of crops, they encompass unique methods, novel applications, and inventive ways of improving consumer products. This means that with the right focus on specific, inventive parameters, there is considerable scope to obtain valuable patents in this dynamic and evolving industry.
Parameterisation
In the food and beverage industry, parameterisation – claiming inventions by defining precise numerical ranges or specific characteristics – is common and can be an effective strategy when described in a well drafted patent application.
By using parameters to define precise ranges (e.g. “1.0–3.0 wt% native whey protein”, or “a water activity of from 0.85 to 0.95”), applicants can claim specific formulations even when the individual ingredients themselves are not new. In food and beverage products, the interplay of ingredients is typically crucial. Small adjustments to ingredient ratios can lead to significant changes in flavour, stability, texture, or nutritional profile. For example, specific pH levels, viscosity or moisture ranges, or combinations of these, might unexpectedly lead to improvements, such as product stability or mouthfeel. Parameterising these specific characteristics allows patents to protect subtle but valuable improvements that make a product more appealing or functional, without needing to introduce completely novel substances (or indeed with removing artificial ones). These improvements are valuable in creating a product that outperforms competitors in taste, stability, or health benefits, making parameters crucial for securing patent protection that reflects the product’s unique qualities.
Many food and beverage innovations involve improvements in processing techniques that lead to a more consistent or superior product. For instance, a patented brewing method might define specific temperature and pressure ranges to create a desired taste or preserve nutritional value. By defining these parameters, patents can effectively protect innovations that rely on specific production conditions, even if the basic process is known.
Drafting insights
When drafting food and beverage patent applications, particularly for inventions characterised by functional improvements like viscosity, shelf stability, or taste, there are notable differences in the optimal approach for various jurisdictions. Take, for example, Europe and the United States. These differences stem from the ways each jurisdiction evaluates claims, assesses inventive step, and interprets claim language.
One consideration is therefore functional vs. structural limitations. The European Patent Office (EPO) typically requires a closer link between the claimed functional characteristics and the structural or compositional features of the invention. For example, a claim directed to “a food product with shelf stability of at least 12 months” would need to specify the particular ingredient (or likely a novel combination of ingredients) that confers this stability. Alternatively, the application would need to provide sufficient basis to support a claim to the manufacturing process which details the process modifications which provides such a result. The EPO may object to overly broad functional claims, emphasising that the invention must be clearly defined by its structural elements to ensure clarity and support for the claim.
I have found that the United States Patent and Trademark Office (USPTO), for example, is generally more flexible regarding claims that define a food or beverage invention by its functional characteristics. Broad functional language, like “a beverage with a stable viscosity of 200–400 cP” is generally acceptable as long as the description provides sufficient support. The US approach can allow applicants to claim the end result of their formulations or processes, even if the exact mechanism by which this result is achieved is not fully elucidated by the claim. In some aspects, this flexibility can lead to broader claims that focus on achieving specific characteristics or benefits rather than detailing precise ingredient interactions.
Experimental data is useful but not mandatory in many cases, as long as the specification describes possible methods or ingredients that could produce the desired functional effect. Patent applications often include broader, theoretical discussions of how ingredients or processes might contribute to a functional improvement. The US allows general descriptions of processes or formulations as long as they enable a person skilled in the art to make and use the invention. The specification might describe a process generally, then discuss a range of possible functional outcomes (such “increased viscosity” or “reduced microbial growth”).
In Europe, the EPO requires thorough support for functional claims. For instance, if an invention claims improved viscosity, the description would be expected to include experimental data or precise descriptions showing how specific parameters or ingredient interactions achieve this outcome (with these being further defined numerically). Comparative data that demonstrates a technical improvement over known products is particularly valuable in Europe, as it helps substantiate the inventive step.
The EPO follows a strict problem-solution approach to inventive step, where the claimed invention must demonstrate a clear technical solution to an objective technical problem. Functional improvements must solve a specific problem, and the improvement must be convincingly demonstrated. For example, an invention that extends shelf stability would need to be presented as addressing a technical deficiency in current products, and the claims must show how specific parameters (like ingredient ratios or processing conditions) achieve this benefit over the prior art.
The bar for inventive step in the US seems in some aspects to be lower, particularly for functional improvements. If a food or beverage formulation provides a new result, such as enhanced stability or novel texture, it may be considered patentable if there is no direct teaching in the prior art. I have found that US examiners often focus on whether a claimed combination is obvious, rather than rigorously assessing the problem-solution relationship. On the other hand, the USPTO allows the practice of “mosaicing”, which is where prior art documents are combined together to reject a claim, particularly where an examiner argues that the combination of features from multiple references renders the claimed invention obvious. This can present specific challenges for food and beverage innovations arising out of specific formulations given the breadth and the sheer number of available prior art disclosures. The volume of prior art may grow rapidly in future with the development of artificial intelligence making mosaicing more problematic – though this aspect of prior art is currently under review by the USPTO, see here.
A further consideration for drafting claims and the description in respect of such parametric features in the food and beverage field is the addition of numerical fall-backs of narrower range. Patent examination can be unpredictable, and having multiple fall-backs allows applicants to address potential concerns raised by the examiner that were not foreseen at the time of filing. An examiner might interpret the claims in a way that was not originally intended reading onto further prior art given the similarity in ingredients across a range of food products (think ice cream vs. gelato, cake vs. brownie, cookie vs. biscuit, tart vs. pie, bagel vs. pretzel, or granola vs. muesli, and the invention may be specific to one of the products). By having fall-back positions that more closely describe the particular product, the applicant can adapt and better align the claims with the inventive concept.
When introducing such features into the independent claim(s) (whether from dependent claims or the description), the EPO and USTPO have different tests, with the EPO’s “gold standard” approach being much stricter. In Europe, emphasis for such fall-backs is therefore placed on avoiding so-called added-matter issues, where the focus is on carefully defined and nested ranges that ensure clear support within the original application.
The US adopts a “written description” requirement, whereby the description must simply convey to someone skilled in the art that the inventor was in possession of the claimed invention, thus verbatim basis for a particular limit is not necessarily essential. US drafting tends to prioritise flexibility in navigating prior art by including a broader set of individual values and incremental ranges (for example, “at least 1 wt%, such as at least 2 wt%, such as at least 3 wt%…”). This enables claims to be narrowed to various intermediate values as needed, without being as restricted by added-matter concerns as in Europe. In the US, applicants often have the flexibility to amend claims by selecting any intermediate values within a range, enabling the creation of new sub-ranges even during prosecution. This provides more leeway to navigate prior art rejections by adjusting specific ranges. Thus, it is not uncommon to see specifications drafted with every integer value of upper and lower limits for a parameter disclosed, together with as many possible combinations of these to provide ranges.
In Europe however, the options for narrowing are significantly more restricted. Applicants can generally amend to one of the broadest or narrowest ranges. We find that the EPO are generally willing to accept that the reader would understand the broadest range associated with a feature to be relied on to describe such a feature, followed by the narrowest range as the most preferred. Creating a new range from a combination of disclosed end-points, or otherwise narrowing to a disclosed intermediate range, might only be acceptable where there are particular pointers to working within such a range, such as from the Examples or specifically disclosed embodiments. Whilst an intermediate parameter or range may be described as preferred over the broadest, the EPO can view this in a similar manner to an arbitrary selection, and a claim having two arbitrary selections is generally not considered to be disclosed in the original application, despite conceptually being possible.
Many food and beverage applications are filed in Europe, the US and further worldwide, and thus from the outset need to be drafted with this in mind. The invention would ideally be described with balanced functional and structural definitions, enabling broader scope in the US, while still satisfying European requirements for technical and structural specificity. Where necessary, we can collaborate with patent attorneys in other jurisdictions, such as the US, in order to ensure that a patent application is in the best condition to meet the legal and technical standards required for multiple jurisdictions.
It can then be beneficial to include a range of specific values and narrower sub-ranges for such structural features which provide flexibility for amendments. A US-style approach to spell out each and every value or limit for a parameter can be helpful for US prosecution. This also provides prior art against future applications, though needless to say, this can also hinder an applicant’s own future applications. However, at least in Europe, given the EPO’s strict approach to disclosure, novel combinations of features from two lists can still lead to patentable subject-matter where, as discussed above, these give rise to an unexpected improvement.
It is beneficial for European applications to emphasise the technical effects. The description should also provide specific pointers to the most preferred values associated with a feature which give rise to the technical effect. This will greatly reduce the likelihood of the EPO objecting to the addition of such feature into the claims, particularly where further amendments may be occasioned to overcome prior art or formal issues with the claims.
Therefore, at the stage of drafting an application for use in Europe, a key step is for the inventors and their patent attorney to reflect on any parameters which may be useful to characterise the invention. They should also carefully consider the broadest range for each parameter which encompasses all sensible technical embodiments, since the broadest range may be the one used to clarify the feature in the claims. A limited number of narrower ranges that would provide useful claim scope should then be included, since these are more likely to be used to navigate the prior art and overcome inventive step objections, and thus should be associated with the greatest technical benefit. We find that this can be a very useful exercise for inventors to really think about what they consider to be important, which can even feed back into the research and development.
Additionally for European patent applications, particularly in the food and beverage sector, it’s a strong drafting strategy to include specific embodiments using claim-like language in the description, such embodiments including combinations of the important, yet individually preferred, fall-back features. These combination embodiments can be relied on in Europe to move to much narrower subject-matter, such as when very close prior art comes to light, with a reduced risk of the EPO considering the combination of features to add subject-matter. The EPO’s strong preference for verbatim basis for claims means that self-contained claim-like embodiments can be very useful starting points. Even the minor changes that may be needed in taking wording from the general description into the claims comes with a risk that the amendments (possibly unintentionally) introduce undisclosed subject-matter by the EPO’s gold standard approach.
Naturally, the patent system incentivises disclosure of all aspects of the invention so as to enter the public domain following the monopoly period. Applicants may however strategically decide which aspects of the innovation to disclose in the application without excessive detail, and to hold onto such details as trade secrets. This balancing act is crucial for all patent applications, as an overly detailed application may be unnecessary, whilst a vague patent might be vulnerable to opposition or fail to offer meaningful protection.
At Boult we bring extensive expertise in drafting high-quality patent applications tailored specifically for the food and beverage industry. We understand the unique challenges and nuances required to secure meaningful and enforceable patent protection in this dynamic field. If your company is exploring new formulations, processes, or functional improvements, we encourage you to reach out to us for expert guidance in bringing your ideas to market securely and strategically.
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