Jo Bradley: Sweets for my sweet, we will let you go

Scotland's food and drink industry is having to adapt as the government cracks down on sugar content. Irn-Bru made headlines last month when makers A.G. Barr announced that the popular fizzy drink's sugar content would be halved, in turn significantly reducing its calorie count.

Irn-Bru made headlines last month when makers A.G. Barr announced that the popular fizzy drinks sugar content would be halved. Picture: John Devlin

Simultaneously, a food and drink health event that I attended in Edinburgh offered some fascinating insights, and highlighted challenges, for the industry.

Attendees heard about the government’s strategy to combat childhood obesity. This is designed firstly to encourage producers to reduce sugar in their products, but more fundamentally, to challenge all sectors of the food and drinks industry to reduce overall sugar across a range of products by at least 20 per cent by 2020. It’s not just sugar on the radar; it is expected that government attention will turn to fat and salt content in due course.

From a consumer perspective, recipe changes will always stimulate discussion about whether much-loved products will change. But from a business perspective, there’s an even more important debate to be had for any iconic brand – and that’s whether those changes impact on protection of intellectual property.

The food and drink sector is the country’s largest, accounting for 18.8 per cent of manufacturing turnover, making any legislative changes in the sector particular relevant.

The nation’s battle with obesity is well known. The country has consistently missed its dieting goals with two out three people overweight, while energy density of the average diet is 40 per cent above dietary goal. The knock-on effect is felt in the health service; 87 per cent of those with type 2 diabetes are obese. So the sector is already hard at work reformulating strategies and developing recipe changes to reduce calories while maintaining appearance and appeal.

The recent Budget, which has seen the levy rate rise to 18p per litre for added sugar drinks with a total sugar content of 5 grams or more per 100 millilitres, also puts significant pressure on manufacturers to innovate.

On the positive side this is a great example of legislation inspiring innovation and new product development, while also potentially opening up a lucrative health market. Nevertheless, if you want to protect your products, it’s important to safeguard them by ensuring you have adequate IP protection.

There’s a good example of this in action. At the recent Edinburgh gathering, a university delegate discussed research exploring the use of alginate, an extract from seaweed, as a food supplement to prevent us from absorbing fat. The alginate can be included in a wide range of food products such as bread, cheese, sausages and drinks and has significant potential as an anti-obesity treatment.

In the case of this research, patent protection had been applied for the alginate extract itself. Protection is available for food products and for processes associated with the preparation of food products. Essentially, the product or process must be new and not obvious.

Food recipes are compositions per se, and if there is a technical effect associated with the composition – such as calorie reduction, suitability for diabetics, or improved digestive wellness – they could well be a candidate for a patent application.

Supplements/additives themselves may even be patentable, such as extracts from seaweed used in foods (see alginate example above). Furthermore, the process of extracting the desired material from the seaweed or the method of farming the seaweed could also fall into this bracket.

Why apply for a patent? The alternative of relying on trade secrets simply may not be effective. They do not exclude third parties from making commercial use of the secret once it has been made public, and adopting such an approach relies on the ability of a workforce to keep the secret, which can be difficult.

In contrast to this, with robust patents, you can obtain protection for up to 20 years, including the ability to prevent third parties from copying your invention. The fact you have filed a patent application makes your competitors aware that that you may be granted a patent in this field and they should pay close attention to that. Moreover, until your patent is granted, competitors will be uncertain about the scope of protection you will get and thus they will be kept guessing. Fundamentally, patent protection is stronger than that afforded by trade secrets and generally easier to enforce. It may give you a negotiating position in the event of a dispute, will allow you to market relevant products as ‘patent pending’, and will help you attract investment.

If Scotland is to lead the way in food and drink innovation for a healthier future, this must go hand-in-hand with a strong and diligent patenting strategy.

That way, the mould-breakers will also feel safe in the knowledge that their ideas remain protected.

Jo Bradley is a Patent Attorney with Marks & Clerk