Patenting Performance: Protecting the Science Behind a Personal Best

The world of food supplements moves quickly. A product can trend on social media as soon as a top athlete is seen using it in training. However, it can still be hard to understand what new supplements actually do. Luckily, the requirement that applicants provide a description of the invention for obtaining patent protection can provide us with insight into how some of these products work.

Nomio is a product that has recently become very popular. I have seen it advertised and used by many endurance athletes, including at this year’s London Marathon Expo. The product is a result of university-based research at the Karolinska Institute and the Swedish School of Sport and Health.

As a patent attorney who also likes to run marathons, I was curious to know whether Nomio is patent protected. As it happens, Nomio Nutrition own a patent family directed towards their flagship product, including a pending European application (EP4259174).  The description in this application provides us with further insight into the innovation which makes this product special.

Scientific background

On the label of a bottle of Nomio, you will find a surprisingly simple ingredient list: broccoli sprout juice (BSJ) 80%; lemon juice 15%; and sugar 5%.

According to the patent application, the invention centres around two natural components found in brassica vegetables (e.g. broccoli), these are glucoraphanin, a naturally occurring sugar, and myrosinase, an enzyme found within certain plants as well as in the human gut. When combined, glucoraphanin and myrosinase react to form sulforaphane, a bioactive compound.

The application describes how sulforaphane can result in:

• an improved mitochondrial oxidative capacity (the ability of your cells to make energy), and
• reduced hypoglycaemia (low blood sugar) during intense exercise.

The critical point for athletes is that these effects improve exercise performance and/or adaptation to physical exercise.  The application shows that athletes perform better (exhibiting a higher maximum power output when pushed to exhaustion and had lower blood lactate concentrations) when using the drink.

However, these effects are also associated with therapeutic benefits.  It is said that the ability to modulate blood lactate levels means that sulforaphane can be utilised in the treatment and/or prevention of medical conditions associated with lactate levels, such as mitochondrial myopathy. Nomio therefore establish a link between the application’s examples, which demonstrate an effect on lactate concentrations resulting from exercise to the treatment of these diseases.

Patent claims

Notably, the claims of the patent application (which are expected to be granted) do not cover the combination of broccoli juice, lemon, and sugar by itself. The requirement for novelty under European law means that any previous composition that includes broccoli juice, lemon, and sugar, for example in a salad or smoothie, would anticipate such a claim, rendering it non-patentable.

Rather, the current claims focus on the use of a composition comprising sulforaphane, glucoraphanin, or glucoraphanin and myrosinase in the treatment or prevention of conditions such as mitochondrial myopathies, liver failure, and diabetic ketosis.  Also claimed is the non-medical use of the composition for improving physical exercise performance and/or adaptation to physical exercise.

This highlights that, even if a composition uses relatively simple ingredients containing known bioactive components, patent protection for new uses (both therapeutic and non-therapeutic) is potentially available in Europe.

Therapeutic uses and data

European law excludes methods for treatment of the human or animal body by surgery or therapy. However, patent claims are allowed when they are written in a specific format directed to a composition for use in such methods (“composition X for use in the treatment of Y”).  Non-therapeutic use claims take a different format (“A non-therapeutic use of composition X for doing Z”).

In its pending application, Nomio provides substantial data (benefiting from their collaboration with universities), including a placebo-controlled dosing study, muscular and mitochondrial analysis, and glucose monitoring studies. Interestingly, in this case, the application did not require specific examples testing the BSJ in patients with the diseases for the European Patent Office to consider these treatments credible.

While patent applicants need to provide sufficient data to support claims directed to therapeutic and non-therapeutic uses, the good news is that, as demonstrated by Nomio’s application, there is no requirement for full pharmaceutical-style clinical trials.

Conclusion

Companies which are developing a product that provides a physiological benefit for exercise performance, or a similar use, should also consider protecting therapeutic uses if the product shows beneficial effects that could be applied in the context of disease.  Even if there are no plans to exploit therapeutic uses, patent claims which cover a product for the treatment of disease could be commercially valuable; in particular via patent licensing.

The intersection of intellectual property and functional nutrition is an exciting place for those interested in cutting-edge performance nutrition. For expert guidance on protecting your functional food and drink innovations, contact HGF’s specialised Food & Drink team.

This article was prepared by Patent Attorney Louis Campbell.