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The history of humanity is the history of food technology. From the moment early hominids developed tools for hunting and fire for cooking, to the first agricultural settlements and beyond to refrigeration, microwaves, and transgenic crops, technology has always been changing the foods we eat and the way we eat them. Given that so much of our history, culture and identity are tied up in what we eat, it is perhaps unsurprising that many of us are picky eaters, and that the public tend to initially view new food technologies with caution.

We have written previously about the exciting new developments in “Future Food Technologies” that go beyond the scope of traditional farming - such as those which involve Cellular Agriculture, advanced alternatives to animal products, genetic manipulation of plants, or novel food sources such as insects. These all have the potential to provide sustainable, affordable, and secure nutrition needed for the ever-growing global population. We believe the future of food contains ample opportunities for innovation. However, public perception will play a significant role in determining the impact of these technologies, and innovators will need to approach regulatory and consumer confidence challenges as seriously as they would any technical hurdles.

Public perception and regulation of new foods can be key factors in their success. Consider foods from genetically modified (GM) plants, for which negative public perception has been hard to shake. However, getting the public on board is possible, and can be profitable, as can be seen by the reframing in recent years of vegetarian or “meat-free” proteins as “plant-based”, which resulted in renewed demand that can at least be partially attributed to their new wholesome and positively-defined image. One of the challenges for future foods is therefore framing: it is necessary that consumers focus on characteristics they view as positive - for example, the “high-welfare” of animal-free meats, “sustainability” of new protein sources, or lower levels of chemical pesticides or antibiotics in compared to traditional agriculture - rather than on a lack of familiarity, or a sense that someone is “playing” with their food.

Building trust

The landscapes of public perception and regulatory requirements are complex, and their navigation remains a challenge. However, lessons could be learned from history. Tinned foods, although first developed as a means to preserve food for the Napoleonic armies and viewed with suspicion, found initial commercial success as a luxury product - a status symbol for middle-class households, and somewhat of a novelty. This image of prestige, aided by falling prices as packaging technology matured, helped build acceptance for tinned goods as they trickled down into the mass-market. In a similar way, innovators could target smaller, high prestige markets aimed at higher income diners as proving grounds for their technologies. Focussing on high-quality ersatz versions of luxury products could build a strong brand with a large degree of public acceptance for the underlying methods. This goodwill can be cashed in and scaled up to the mass market at a later date. For example, innovators may look to luxury foods such as truffles, steaks, or more “everyday” treats like fast food in order to associate their technology platforms and branding with existing positive customer perceptions of these products.

Public approval can also be built through focussing on positive characteristics of the products, in a similar way to how frozen foods emphasise their freshness and convenience, and how meat substitutes have adopted the positively worded “plant-based” label. There is a renewed interest in “natural” foods, which many consumers define as having no preservatives, hormones, antibiotics, or pesticide residues; this provides a significant opportunity for engineered crops which reduce the need for pesticides and preservatives, or for cultured products which do not require hormones or antibiotics. Similarly, the animal welfare credentials of cell culture-based meat or milk products could be increasingly valuable as the market for “cruelty-free” products continues to grow.

For emerging foods, deciding which markets to target first could be difficult, and will doubtless include dozens of competing commercial, technical, and values-based considerations in addition to building public acceptance. Interestingly, by pursuing relatively small markets, patents with relatively narrow claims (which may therefore be easier to obtain) could allow producers to become dominant in their field. This could provide a strong market position and build consumer trust, whilst allowing time to develop, refine, and pursue protection for platform technologies. A strong and strategic approach to IP from the start may therefore enable innovators to secure their market position without foregoing early commercialisation.

Regulatory roadblocks or opportunities?

New foods, whether obtained from new sources or through new methods, need to meet regulatory standards before being approved for human consumption. For entirely new products, such as those made from Cellular Agriculture, there is no existing regulatory framework, and a new one must be built from scratch. From historical experience, early innovators will have huge influence over this process, and will likely establish the regulatory standards for those that follow. Patents protecting elements relating to a process which ends up forming part of the regulatory requirements, or covering the equipment necessary for meeting or testing compliance, will likely put rights-holders in a very strong position.

Early innovators are also likely to possess undue influence over sector norms, and may be able to establish common industry standards and self-accreditation regimes. For example, an early mover might be able to set the benchmarks for naming a product as “Clean Meat”, in a similar fashion to the Fairtrade and Farm-Assured “Red Tractor” marks. If there is sufficient public trust in such a mark, competitors who are unable to claim the accreditation may find themselves blocked from the market due to a perception of lower quality, and the accreditor may be able to directly monetise the assessment and compliance systems through patent licensing and administrative fees. In establishing this strong narrative, securing strong trademark protection to protect the brand may be as important as obtaining patents for the underlying technologies.

Existing regulatory regimes may also present innovators with opportunities. Standards are likely to differ between countries and sectors, as they currently do for GM crops. This may allow specialisation of products to particular markets which, when combined with strong patent and trademark protection, could leave rights-holders in dominant positions and present significant opportunities for cross-licensing. For example, products that face tight regulation and poor public perception when it comes to human consumption may find success in the animal feed market where the regulation is looser, the buyers are typically more price sensitive, and the end consumers unswayable by public opinion. That said, when it comes to pets, there is a growing demand for high quality feed products billed as “natural” or “additive-free”, opening up a potential niche market for Future Food Technologists. As discussed above for human foods, a combination of strong patent protection and shrewd branding could allow producers to take up a dominant position within this niche market.

Indeed, innovators may seek ways to produce their products in ways that sidestep the need to address consumer perception or regulatory red-tape altogether. For example, cellular agriculture companies might focus on developing culture media and methods to extend the proliferative capacity of cells in culture, rather than directly genetically engineering cells to proliferate more. Crop engineers could may find regulatory environments more favourable for marker-aided selection, gene editing, and ways of increasing natural recombination rates than for transgenic methods. Similarly, those working on protein sources of the future may look to relatives of existing food sources, such as fungi and shellfish, rather than those such as insects which are more unfamiliar to consumers.

Smarter foods need a smarter patent strategy

As is typical in such a new field, innovators in future foods will face many challenges bringing their products from the workshop to the supermarket shelves. In addition to developing their “core” technology, many technical hurdles will need to be overcome. For example, in Cellular Agriculture, developing a suitable strain to produce the desired product is only the beginning; innovators will have to develop and optimise methods of cell culture, designs for bioreactor fermenters, cell media reagents, control devices and their software, purification methods, and the processes required to turn the fermenter products into finished foods with the desired flavour and texture. Similarly, crop engineers may need to develop new tools for generating and selecting plants with desired traits, or even advanced greenhouses and systems for indoor agriculture. Whilst arguably less exciting than the core technology, the solutions to these challenges may contain inventions for which patent protection can be obtained. Advantageously, many of these inventions will be developed behind closed doors, are continually updated, and are unlikely to be disclosed to the public in a press release. This means that a steady stream of patents could be filed, with claims covering steps of the current best production process. Protecting the production method can keep competitors out of the marketplace even as the earliest filed patents expire, as in the case of the meat-free food Quorn, which has retained its market position even after the “core” patents expired in 2010. By protecting not only the core technology but the ancillary inventions, innovators can therefore shore up their position and give themselves an effective and long-lasting edge over their competitors.

Interestingly, patent claims covering “secondary” technologies may be relevant to producers of other products in non-competing markets in a way that those concerning core technologies are not. For example, an improved fermenter might be as useful to a cell-derived textile company as it is to a producer of cultured meat, despite these products being non-interchangeable and the markets separate. Licensing these “secondary” technologies to non-competing third parties could provide a royalty stream independent of the success of the “core” product, and patent claims covering them may turn out as lucrative as those covering the core technology. Indeed, innovators in seemingly unrelated fields, such as production of industrial enzymes and biologic pharmaceuticals, may be keen to licence these “secondary” technologies for use in their sector, and may able to leverage their existing patent portfolios covering useful fermenter technologies within markets for future foods. 

Adopting a holistic approach to IP strategy and embedding invention capture into the development process early on may therefore allow innovators to maximise their return on R&D and provide diverse streams of income.

Conclusion

It is common for technology innovators to work on technical solutions first, and leave the marketing pitches for later down the line. However, for future food technologies, this may be a mistake as the public perception of their end products, and the regulatory requirements to meet before they reach the market, may be less straightforward than for conventional products. The need to get is right is unarguable - the technologies discussed in this article have the potential to contribute to the challenge of feeding an ever-growing global population which, based on current projections, will require raising overall food production by 70% by 2050. Innovators in future foods should therefore carefully consider how their products will be labelled, regulated, and how the public will respond, from the earliest stages of product development, and how IP protection can be used to obtain and cement this favourable position.

Andrew is an Associate and Patent Attorney at Mewburn Ellis. Working in our life sciences team, Andrew is experienced in drafting and prosecuting patent applications for local and international clients. Primarily, he works with clients who are early innovators in their fields, such as universities and start-ups, and his work covers a range of technical areas. He also has extensive experience with Freedom to Operate (FTO) projects where, in addition to providing infringement opinions and patent landscape analysis, he coordinates teams handling larger projects for multinational organisations.
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