This was the tricky question mulled over recently at the UK Patent Office in a decision involving patent application GB0329453.5 by Mars UK Limited, purveyors of cat food and experimenters in feline mind control (see previous IPKat post here).
The applicant tried to get the following claim:
1. A foodstuff having a protein energy ratio of from 40 to 60%, a carbohydrate energy ratio of 25% or less and a fat energy ratio of from 15 to 60%, wherein the energy ratios are based on the total energy content of the foodstuff, when used in a method of increasing the acceptance and enjoyment of a foodstuff to a cat.According to the applicant, the food lay within a particular range where it didn't really matter what form the food was in, the cat would eat it anyway. This was because (again, according to the applicant) cats would tend to aim for a particular balance of protein, carbohydrate and fat in their food, rather than preferring any particular organoleptic qualities of the food.
What seemed to puzzle the hearing officer was how the skilled person, when reading the claim, could possibly determine whether the cat was enjoying the food. Defining whether the cat accepted it was fairly easy: the food was eaten. This was also, however, shown in the prior art, which also showed compositions falling within the claim. Any novelty therefore came down to a definition of enjoyment. The application tried to help by saying:
"The enjoyment of the animal and/or increase in acceptance/palatability can be determined, for example, by one or more of the following:-Given that I do all of the above on a regular basis, regardless of whatever rubbish my servants insist on feeding me, I find it hard to believe how the skilled person would be able to tell whether or not I am enjoying my food. Personally, I enjoy killing birds and small mammals, but food is something that is there to be consumed before the next enjoyable nap, wash, stroke or killing. I was therefore glad to see that the hearing officer agreed, saying "I consider that a skilled person would recognise that 'A method … to ensure the increased acceptance and enjoyment' is indeterminable in scope and would therefore not be able to reliably construe this claim". The application was therefore refused, correctly in my opinion.
- an increase in the quantity of foods consumes;[sic]
- a decrease in the frequency of refusals to eat over an extended period of time;
- an increase in enthusiasm during the meal as indicated by a reduction in the time taken to start a meal and/or increase in the speed at which food is consumed;
- the animal chooses the food over another food;
- the animal refuses other foods;
or by any other behaviour by a pet animal which is taken by the owner/carer to be an indication of enjoyment of the food, for example:-
- the animal rubs around the owner[sic]/carer when serving the food;
- the animal is inactive/rests or sleeps after eating;
- the animal licks itself or washes after eating."