G4/19 Decision: Double patenting is a ground for refusal before the EPO
The Enlarged Board of Appeal of the European Patent Office has made a decision on the G4/19 referral.
The “sugar tax” which comes into effect in 2018 targets the soft drinks sector as part of the government’s plan to tackle child obesity in the UK. However, over the past few years consumers have been increasingly advised to cut down on total sugar in their diets, and the food and drink industry – not just the soft drinks sector – is under pressure to pay attention to the shift in consumer attitudes.
The Government’s Childhood Obesity Strategy outlines a range of measures, of which the “sugar tax” is one, which aim to significantly reduce childhood obesity within the next ten years. It states that ‘all sectors of the food and drinks industry will be challenged to reduce overall sugar across a range of products that contribute to children’s sugar intakes by at least 20% by 2020’, as well as outlining numerous other recommendations, such as clearer labelling whereby sugar content will be represented in teaspoons of sugar.
This strategy sets out the UK Government’s continuing commitment to reducing consumers’ sugar intake; a message that already seems to be gaining traction in the market. A report by Kantar Worldpanel published in November 2016 reported almost two thirds of households (62%) are very or fairly concerned about sugar, up 41% on last year.
There are various ways for manufacturers to respond: reformulating products by replacing sugar with artificial sweeteners; expanding product ranges to incorporate low-sugar alternatives alongside main brands; or simply reducing portion sizes, in turn reducing the total amount of sugar consumed in a product.
If manufacturers choose to reformulate or create a new product, they will be investing a significant amount of time in R&D and may create valuable intellectual property. Protecting this intellectual property is vitally important to ensure that competitors cannot take undue advantage of the cost, time and resources put into any R&D program.
For example, if products are reformulated to reduce or remove sugar, and in doing so, introduce new ingredients, new combinations of ingredients are used, or new ways of increasing sweetness using known non-sugar sweeteners (by controlled release, for example), then the resultant inventive products and processes may be protectable with a patent.
Similarly, if by reformulating your products, the sugar replacement creates other issues (such as increased bitterness or a strange after-taste), and then a solution is found to those issues, both the original reformulation and the solution to any further problems may be inventions, and worthy of patent protection. If a new way of overcoming a problem with known sugar alternatives is particularly useful, and one which competitors would love to employ without expending any resources or effort, then patent protection will be critical.
If manufacturers or retailers launch a new brand on the back of new product development, it will be important to ensure that the new brand does not infringe any existing trade marks in all of the markets in which the brand will operate, and that the brand is protected with a trade mark registration as soon as possible.
We work with food and drink companies to ensure they have the intellectual property in place to protect their brands, ideas and innovations. Get in touch with us today to speak to a member of our specialist food and drink team.