The revocation of Impossible Foods’ European patent and repercussions for the alt protein industry

Few will have failed to notice the first major IP dispute in the alt protein field concerning Impossible Foods’ US patents to heme-containing ingredients used in its vegan meat. On the other side of the pond, November 2022 saw the conclusion of the opposition filed against Impossible Foods’ European patent EP2943072B1 for a meat substitute, in which the patent was revoked by the European Patent Office (EPO). It is worth examining the reasons behind the EPO’s decision to understand what – if anything – alt protein companies can do to avoid losing their own patents in the event of a third-party attack.

The granted patent claimed a meat substitute comprising a heme-containing protein and at least two flavor precursor molecules selected from a list of 40 compounds, the meat substitute being further defined by acquiring a taste and smell of meat during the cooking process.

As the claims recited technical effects that allegedly result from the combination of the heme-containing protein and the flavor precursor molecules, the EPO’s practice requires that those effects must be obtained by substantially all combinations claimed. However, as noted by the EPO, the scope of the patent covered billions of combinations of proteins and flavor precursors. Furthermore, some of the combinations exemplified in the patent did not produce the claimed effects. As a result, the EPO found that the patent contained insufficient information to enable a person skilled in the field to achieve the claimed taste and smell of meat, without having to undertake a research program to determine by trial and error which combinations of proteins and flavor precursors would work.

This case highlights not only the value of the EPO’s opposition procedure for obtaining central revocation of a competitor’s patent across Europe, but also the importance of data in food-tech patents

To overcome this problem, Impossible restricted the claims to specific combinations of flavor precursors (cysteine, glucose and thiamine, or cysteine, ribose and thiamine) which were shown by the patent’s examples to result in the taste and smell of meat. Unfortunately for Impossible, however, these combinations were considered obvious over a prior patent application (WO2013/010042) which disclosed that leghemoglobin contributes favorably to the aroma of a meat substitute comprising pea flour. It was the EPO’s view that as thiamine, glucose and ribose are inherently present in pea flour, the only difference between Impossible’s meat substitute and the prior art composition was cysteine. In the absence of any comparative data in the patent showing an unexpected benefit resulting from the presence of cysteine, the inclusion of cysteine was considered to be a trivial modification, particularly when taking into account a further document describing that a beef aroma resulted from the use of cysteine.

The amended claims were therefore ultimately found to lack an inventive step.

This case highlights not only the value of the EPO’s opposition procedure for obtaining central revocation of a competitor’s patent across Europe, but also the importance of data in food-tech patents, particularly when a wide scope of protection is desired to block competition. Broad claims should be supported by a number of examples which demonstrate that an alleged advantage (e.g. improved flavor) is achieved across the claim scope. It is advisable to include as much data as possible in the application at the time of filing. Although additional data can be submitted to some patent offices during examination, in Europe such additional data can only be used to substantiate what is already made plausible in the original application. Careful thought should also be given to whether or not to include non-working examples in a patent application – had Impossible chosen to exclude its unsuccessful examples, the burden would likely have fallen on the opponent to prove experimentally that not all of the claimed combinations give the alleged effects.  

Impossible has appealed the EPO’s decision so we are unlikely to see the final outcome of these proceedings until at least 2024. The grounds on which the appeal is based are yet to be filed.  Interestingly, a further patent was granted to Impossible Foods in 2022 – this patent claiming a meat substitute comprising an iron complex (ferrous chlorin) and at least two flavor precursors selected from a list identical to that of the ‘072 patent. It remains to be seen whether this patent will be opposed.

Jennifer Bailey is a Patent Director at HGF. She is an experienced European Patent Attorney, having practised in the field of IP for more than 10 years. Her technical expertise spans a wide range of sectors including life sciences, chemistry, materials and food science. This article was republished from the January/February 2023 edition of Protein Production Technology International, the industry's leading resource for alternative proteins. To subscribe to read future editions hot off the digital press, please click here