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IP Ingredients: The not so “Impossible” Burger

January 2025

Meat alternatives are a hot topic with the increase in popularity of vegetarianism and veganism, highlighted by this month being “veganuary”.  However, at time when meat alternatives are coming under attack from various angles such as labelling using meat-related terms, and with fierce competition for funding, the need for a competitive edge underpinned by robust IP protection for alt-protein products is clear.

In December 2024, we reported that an appeal had been filed by Impossible Foods against the decision of the European Patent Office to revoke its patent EP2943072B1. Oral Proceeding were scheduled to take place this January.  The EPO’s Board of Appeal has now issued its decision (T 0425/23) without the need for a hearing due to the strawman opponent withdrawing from the appeal proceedings.

The patent relates to the use of Heme-proteins and flavour precursors to provide a meat substitute product that cooks, smells and tastes like meat. However, the EPO’s Opposition Division held that the claimed invention was not sufficiently disclosed because the patent application showed that some compositions falling within the claim scope did not, in fact, achieve the taste of meat.

In Europe, an invention is only sufficiently disclosed if a person skilled in the art can carry out the invention (i.e. achieve its advantageous effects) over the whole scope of the claims without undue burden, using their common general knowledge.  In this case, the Opposition Division found that an undue burden would be placed on a skilled person to identify compositions, which could be derived from at least two flavour precursors selected from a list of 40, in any combination, that would achieve the desired effects.

During the appeal proceedings, Impossible filed a new claim set (AR1A) in which claim 1 was directed to a method of making a meat substitute, rather than to the product itself. In addition, the flavour precursor molecules were restricted from the original list to just a few specific compounds:

A method of making a meat substitute comprising a heme-containing protein and at least the flavour precursor molecules (i) cysteine, glucose and thiamine, or (ii) cysteine, ribose and thiamine;

wherein the meat substitute is further characterised 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.

In the written proceedings, the opponent alleged that the invention defined by amended claim 1 still lacked sufficiency, based on the fact that the patent examples only relate to a single heme-containing protein (leghaemoglobin).  The opponent pointed to paragraphs [0030] and [0060] of the patent, arguing that these provided “evidence that particular heme-containing proteins had to be chosen to control the formation of flavour compounds; otherwise, undesired flavour compounds were generated, changing the taste profile“.  As a result, the opponent submitted that the patent did not provide sufficient information to select heme-containing proteins which achieved the desired taste without trial error, thus placing an undue burden on the skilled person.

The Board of Appeal disagreed.  Having considered examples 3 and 5 of the patent (both relating to leghaemoglobin), the Board found that these provided enough evidence that the combination of heme-containing protein and the claimed combination of flavour precursors have the taste of meat. The Board also found that example 9 (which relates to four types of heme-containing proteins) shows that volatile flavour compounds present in meat are generated by heating different types of heme-derived proteins with ribose and cysteine.

The Board also disagreed with the opponent’s interpretation of paragraph’s [0030] and [0060], stating: “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

In relation to the flavour precursors, the opponent further argued that there were serious doubts that a meat-like flavour could be obtained using all of the different combinations of flavour precursors encompassed by claim 1, at any concentration and at any pH .

Again the Board of Appeal disagreed based on examples 3 and 5 which showed that the claimed combinations of precursor compounds, at certain concentrations and pH, induce the taste of meat. In the Board’s view, a skilled person would be able to rely on this teaching to carry out the invention. The Board further stated that the skilled person would avoid working outside the pH and concentration ranges provided in the examples, especially if there was no meat-like taste provided.

The Board also rejected the opponent’s objections based on added matter, clarity, novelty and inventive step.  Accordingly, the patent was maintained on the basis of the auxiliary claim set AR1A.

The Board of Appeal’s positive finding on sufficiency of disclosure may come as surprise to patent applicants in the life science field who are often required to submit data to demonstrate that claims to a general class of compounds or therapeutics achieve a technical effect across their scope.  However, the Board’s decision can be understood by contrasting the claim considered on appeal with the granted claim, as assessed by the opposition division.

According to EPO case law, an objection of lack of sufficient disclosure must be based on there being serious doubts, substantiated by verifiable facts. As noted in the opposition division’s decision at first instance, claim 1 of the patent as granted covered “a myriad (i.e. several billions) of combinations of heme-containing products and flavour precursor compounds”.  It was this vast claim scope that led the opposition division to have serious doubts that the taste and smell of meat could be achieved by substantially all claimed embodiments. Indeed, the opposition found these doubts to be substantiated by verifiable facts presented in the patent itself, since some of the exemplified compositions were described as providing “bready” or “potato” flavours rather than the taste or smell of meat.

In contrast, the significantly narrowed claim presented during appeal proceedings was supported by the examples to the extent that the Board had no grounds for serious doubts, substantiated by verifiable facts.  Rather, the opponent relied on a mere assertion that the effects of the invention could not be achieved across the claim scope.  To win on this point, the opponent would have needed to present experimental evidence showing that some of the claimed combinations of proteins and flavour precursors did not give rise to the taste or smell of meat.

In opposition proceedings before the EPO, experimental evidence is often crucial to overturn a patent on the grounds of sufficiency.  Opponents should therefore consider whether such experiments are needed well in advance of the opposition deadline (9 months post-grant).

While the decision could be viewed as a win Impossible Foods, who have had one patent revoked in the US, the result has come at considerable cost to the claim scope.  Had Impossible omitted the non-working examples from their original application, would there have been verifiable facts on which serious doubts could be raised, such that the patent was not revoked at first instance? Certainly, this would have placed a greater burden on the opponent to produce their own evidence.

Applicants are therefore advised to carefully consider which experimental data to include in their applications, since the inclusion of non-working embodiments could be detrimental to inventive step or sufficiency down the line.  In some cases, less is certainly more.


This article was prepared by Partner and Patent Attorney Jennifer Bailey and Patent Attorney Oliver Chammas

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