Bloody good outcome for Impossible Foods as EPO Board of Appeal revives patent for vegan meat substitute (T 0425/23)

In recent years, there’s been a lot of innovation to develop alternatives to animal-based food products. Unsurprisingly, such efforts to create and market new products have been accompanied by plenty of IP disputes, from the EUIPO’s refusal to register a trade mark for vegan bacon to the EPO’s consideration of the plausibility of a patent for vegan cheese. 

Photo by Valeria Boltneva, via Pexels.

The latest of these disputes involved a European patent filed by Impossible Foods Inc., which claims a meat substitute that acquires the taste and smell of meat during cooking. After being revoked in 2022, the patent was reinstated by the EPO Boards of Appeal on 20 December 2024 (T 0425/23).

Background

The European patent, entitled "Methods and compositions for affecting the flavor and aroma profile of consumables," was granted (after several amendments) in 2017. Claim 1 as granted was for a meat substitute comprising a heme-containing protein and "at least two flavour precursor molecules," selected from a list of molecules in the claim.

The opposition was initiated by a "straw man" opponent, Reiser & Partner Patentanwälte mbB, in 2018. The opponent argued that the patent was invalid for lack of novelty, lack of inventive step, insufficiency of disclosure, and extension of subject matter beyond the application as originally filed. 

The Opposition Division found that the patent (both in the form of the main request and auxiliary requests) was invalid for insufficiency of disclosure. The disclosure needed to allow the invention to be performed over the entire claimed scope without undue burden, applying the common technical knowledge. The Opposition Division took issue with the independent claims, finding that they covered a myriad (i.e. several billion) of combinations of heme-containing products flavour precursor molecules, and the Opposition Division had serious doubts that the working examples could be extrapolated to substantially all claimed embodiments.

To address this concern, Impossible Foods requested to carry out an in-person test at the EPO, but this was denied. This was because the request was made very late in the proceedings, and furthermore, cooking the meat substitute "would set off the smoke detectors and it is in general not allowed to cook in the office rooms at the EPO premises." Most importantly, the Opposition Division took the view that an in-person demonstration of very limited embodiments would not be sufficient to show that the claimed technical effects were obtained over the whole range of claims.

The Opposition Division found that the subject matter did not extend beyond the content of the application as filed, and that the invention was novel. However, it lacked an inventive step over its closest prior art (which described a mixture of pea flour, sunflower oil and glucose cooked in the presence of reduced leghaemoglobin). 

Board of Appeal decision

The Board of Appeal acknowledged that this was a complex case where the proprietor had to address "numerous and increasingly expanded attacks raised by the opponent and [anonymous] third parties during the opposition proceedings. More than 100 documents were filed, most of them after the filing of the notice of opposition." Therefore, Impossible Foods' auxiliary requests that adopted new wording at a later stage of the appeal proceedings were justified.

The opponents argued that the new wording created subject-matter not disclosed in the application, but the Board of Appeal disagreed. For example: 

• Regarding an "isolated heme-containing protein," the Board of Appeal found that the requirement that the heme-containing protein be "isolated" was directly and unambiguously disclosed in the application. 
• The combination of three flavour precursors (cysteine, glucose and thiamine; or cysteine, ribose and thiamine) was directly and unambiguously disclosed in the application, and these combinations represented the preferred embodiments of the invention disclosed in the application as filed.
• The feature "wherein a taste and smell of meat is given to the meat substitute during the cooking process" was disclosed. The Board of Appeal found that "the concept of giving the smell and taste of meat to the meat substitute during the cooking process is the gist or at least the preferred way of carrying out the invention disclosed in the application as filed." 

Turning to sufficiency of disclosure, the opponent argued that the claim to use a "heme-containing protein" couldn't be carried out across the entire scope claimed without an undue burden. This was because the evidence shown in the examples related merely to one single heme-containing protein: leghaemoglobin. The opponent argued that the patent provided evidence that particular heme-containing proteins had to be chosen, otherwise undesired flavour compounds were generated. Since the patent did not provide sufficient information to select heme-containing proteins inducing the desired taste, it involved an undue burden. The Board of Appeal disagreed with this interpretation, and found that the claimed invention was sufficiently disclosed:

"These paragraphs teach, at most, that different smells and tastes can be obtained using different heme-comprising proteins. Yet, they do not teach that the variation is such that the meat substitute will not have the smell and taste of meat. Consequently, these passages do not provide evidence that it is impossible to achieve the claimed effect using the heme-containing proteins encompassed by claim 1."

Amongst other issues, the Board of Appeal also addressed the arguments that the invention lacked novelty and inventive step over the closest prior art. For example, the opponent argued that all the claimed ingredients were disclosed in the prior art, on the basis that pea flour necessarily contained the relevant ingredients, including thiamine, cysteine and ribose. However, the Board of Appeal found that the composition of the pea flour in the prior art, let alone its origin and processing steps, was not mentioned in this document and could not be established. The claimed invention also contained an inventive step. The EPO found that, without hindsight, the skilled person starting from the closest prior art would not have arrived at the claimed solution.

Closing Thoughts

Impossible Foods has faced considerable opposition to its patents - not just in Europe, but also in the United States. The US opposition arose after it brought infringement proceedings against its competitor, Motif FoodWorks Inc. One of Impossible Foods’ patents was revoked, but the PTAB declined to review the validity of the other six. There was talk of an appeal, but the parties announced a settlement in September 2024 that will see Impossible Foods acquire part of Motif’s business.

Coincidentally [Merpel: or maybe not?], the opponent in EPO proceedings informed the Board of Appeal that it would no longer be participating in the proceedings and withdrew its request for oral proceedings in October 2024. After all these disputes, Impossible Foods will certainly be glad that it can confidently "steak its claim" over its meat substitutes again.