In decision T 0425/23 of 20 December 2024, the European Patent Office (EPO) Board of Appeal (BoA) served up a significant win for Impossible Foods, upholding a key patent covering their heme-based meat substitutes.
This case is one of several challenges to Impossible Foods’ patents. In the US, seven of their patents have faced opposition after they brought infringement proceedings against Motif FoodWorks, in relation to their use of heme proteins in plant-based meat products. While Motif FoodWorks had success invalidating the claims of one of Impossible Foods’ US patents, the US Patent Trial and Appeal Board declined to review the validity of the other 6 patents.
In September 2024, the parties reached an agreement whereby Impossible Foods took over Motif FoodWorks’ heme-related business. So, no beef anymore. This could explain why the ‘strawman’ opponent in the present appeal case informed the BoA in October 2024 that they would no longer be participating in the appeal proceedings.
Impossible Foods’ European patent EP2943072 relating to meat substitutes and methods for producing them granted in December 2017. The main independent claim was to:
A meat substitute comprising:
a) a heme-containing protein; and
b) at least two flavor precursor molecules selected from the group consisting of glucose, fructose, ribose, arabinose, glucose-6-phosphate, fructose 6-phosphate, fructose 1,6-diphosphate, maltose, galactose, lactose, xylose, sucrose, maltodextrin, thiamine, cysteine, cystine, a cysteine sulfoxide, allicin, selenocysteine, methionine, isoleucine, leucine, lysine, phenylalanine, threonine, tryptophan, 5-hydroxytryptophan, valine, arginine, histidine, alanine, asparagine, aspartate, glutamate, glutamine, glycine, proline, serine and tyrosine;
wherein a taste and smell of meat is given to the meat substitute during the cooking process.
The patent was opposed and subsequently revoked by the EPO at first instance for insufficiency of disclosure and lack of inventive step.
The Opposition Division (OD) held that there were serious doubts that all possible combinations of heme-containing proteins and the two or more flavour precursor molecules could achieve the specified technical effect of imparting the taste and smell of meat during cooking, and that there was an undue burden for the skilled person to identify compositions that achieved this effect. They did, however, acknowledge sufficiency where the two flavour precursor molecules were either glucose and cysteine, or cysteine and ribose.
For inventive step, the OD held that even the more narrowly-defined product was obvious in view of a prior art document disclosing a meat replica product comprising pea flour, sunflower oil and glucose, that when heated in the presence of leghemoglobin was described to give rise to the aroma of cooked meat.
Another sizzling detail of the first instance proceedings was the OD’s refusal of Impossible Foods’ request to perform an in-person demonstration at the EPO that various meat substitutes as defined in the claims did indeed achieve the technical effect.
The Appeal
Impossible Foods filed an appeal against the OD’s decision to revoke the patent. Ultimately, they requested maintenance of the patent on the basis of the following independent claim:
A method of making a meat substitute, the meat substitute comprising:
a) an isolated heme-containing protein; and
b) at least the flavor precursor molecules
i) cysteine, glucose and thiamine, or
ii) cysteine, ribose and thiamine;
wherein the meat substitute is further characterized in that a taste and smell of meat is given to the meat substitute during the cooking process; and
wherein the method comprises a step of combining the isolated heme-containing protein and the flavor precursor molecules, wherein the flavor precursor molecules are added in purified form or are derived from ingredients in the uncooked meat substitute that are enriched with one or more of the particular flavor precursor molecules.
A key point of the opponent’s case in relation to insufficiency was that the patent only exemplified methods employing the heme-containing protein leghemoglobin. They argued that these data were insufficient to demonstrate that all heme-containing proteins would achieve the specified technical effect of imparting the taste and smell of meat, during cooking.
However, the Board of Appeal (BoA) didn’t mince their words in rejecting this argument, noting that the patent also included evidence that volatile flavour compounds present in meat were produced when heating several different heme-containing proteins with combinations of flavour precursor molecules as claimed. They held that there was no evidence that it was impossible to achieve the specified technical effect using a heme-containing protein as specified in the claim.
The BoA also overturned the OD’s decision in relation to inventive step. They held that the claimed method differed from the disclosure of the closest prior art document in that it additionally employs the flavour precursors cysteine and thiamine. The BoA found that the data in the patent showed inclusion of cysteine resulted in the production of a larger number of meat aroma compounds, and that inclusion of thiamine resulted in a more ‘meaty’ flavour profile. They held that the cited prior art did not provide motivation to add isolated cysteine and thiamine to meat products of the closest prior art document with a view to obtaining a more beefy, meaty and savoury taste and smell. Accordingly, the claimed subject-matter was found to involve an inventive step.
There was also an interesting procedural decision in this case. The BoA admitted Impossible Foods’ late-filed main claim request (filed many months after their Grounds of Appeal), noting that while they had filed a large number of claim requests throughout the first instance and appeal proceedings, this was a complex case. There had been numerous and expanded attacks raised by the opponent and third parties, with more than 100 documents filed (most of them after the Notice of Opposition). They found that the new claim request was based closely on a claim request already on file, that the additional amendments were not complex and had clear basis in the application documents, and that the new claim request was responsive to an objection raised in the opponent’s reply to their Grounds of Appeal.
Perspectives
The BoA’s decision to maintain the patent on the basis of the independent claim shown above illustrates that it is possible to obtain broad claims in the alternative protein space, that stand up to being challenged. It’s good news for innovators.
There’s always a decision to be made in relation to when to file an application for a patent, and the data available at that time. It’s really important to include data of relevance for embodiments across the full claim scope, and Impossible Foods were found to be on the right side of the line in this case.
It’s also interesting to see the EPO taking a more patentee-friendly approach on procedural aspects, having been very strict in recent years on the admissibility of claim requests filed late in appeal. A medium-rare outcome. I wonder if they would have been as flexible had the opponent been in attendance at the oral proceedings, and vigorously arguing against admission of the late-filed request.
This decision reinforces the importance of well-supported patent applications in the alternative protein space and highlights the EPO's willingness to uphold strong claims when backed by sufficient data.
