Scran & sIPs

Your definitive guide to intellectual property for the Food & Drink industry in Scotland

SCRAN

/skran/

Noun. Food.

"We canny go out on an ​empty belly — any chance ​of some scran?"

Issue 6 - Summer 2022

Contents

A Message from the Editors

Country in Focus - India

Client Q&A with Adelphi Distillery

Distilleries Rejoice: Enhanced Legal ​Protection for Scotch Whisky in the US

Making Food Waste Easier to Digest

Patenting of Biotech Inventions in the Food ​and Drink Sector

Lowering Emissions in the Agri-supply ​Chain with AI/Data Science

Client Q&A with National Collection of ​Industrial Food and Marine Bacteria ​(NCIMB)

Meet the Team

Cross-office Challenge

A message from the editors

Country in focus: India

India is a rapidly growing economy and an increasingly important consumer market because of the sheer size of its population and a burgeoning “middle class”. Notwithstanding what would seem to be a short-term setback due to the impact of COVID-19, the Indian economy looks likely to bounce back in 2022 and is already expected to be one of the fastest growing economies in the world.

It is an important export destination for British food and drink. It holds significant potential for Scottish whisky exports in particular as tariffs on Scotch whisky may be reduced once the India-UK Free Trade Agreement is concluded, with the current expected conclusion of the agreement to happen after Diwali sometime towards the end of the year. The Scotch Whisky Association has been optimistic with its Chief Executive, Mark Kent, indicating that Scotch whisky exports to India could grow by £1 billion over the next five years.

Buoyed by its growing importance as a consumer economy over the past decade, there has been a significant rise in trade mark applications filed in India, with the country overtaking Japan as the fifth country by number of trade mark applications filed.

The significant growth of the Indian economy has also resulted in a rise of the country’s importance as an export destination for Scottish food and drinks products, and increased numbers of trade mark filings. This has also caused the Indian Government to take a hard look at the reputation of India being a difficult jurisdiction for IP protection. A new National IPR Policy was formulated by the Indian government in 2016 to tackle the situation of extremely long examination times, extensive backlogs, incorrect (outdated) Registry records, and significant delays and obstacles to effective IP enforcement.

Country in Focus: India cont'd

Since the implementation of the new National IPR Policy, the Trade Mark Registry has overhauled its internal processes, implemented new technological solutions, and hired more staff. The situation has vastly improved with Trade Mark applications proceeding to Registration in less than seven months in smooth sailing cases.

Indian Trade mark law

Trade marks are regulated under the Indian Trade Mark Act 1999 and Trade Mark Rules 2017. Trade mark law in India has its roots in the common law principles of passing off and equity. There have been strong links with jurisprudence from the United Kingdom. The first Indian Trade Marks Act of 1940 took inspiration from the UK Trade Marks Act of 1938; and Indian Courts also take into account principles and interpretations formed by the Courts in England and the USA in relation to unregistered trade marks.

The Trade Mark Act 1999 was introduced in order to comply with the requirements of the TRIPS Trade Agreement. The Trade Marks (Amendment) Act, 2010, and subsequent Trade Mark Rules have simplified the registration process, introduced new rules for International Trade Marks, permitted the registration of new types of marks, such as sound marks and 3D marks, and allowed for hearings via video conferencing.

The Head Office of the Trade Marks Registry is in Mumbai and branch offices are in Ahmedabad, Chennai, Delhi and Kolkata. For handling Madrid Protocol applications that designate India, examinations and hearings take place at the Head office of the Trademark Registry in Mumbai.

Ownership of trade marks: first-to-file or first-to-use basis?

With its legal traditions rooted in common law, the Indian trade mark system, save for a few exceptions, recognises the ownership of trade marks on a first-to-adopt/use basis. This first to adopt/use rule applies to adoption and use of a trade mark even outside India. Therefore, a food and drinks mark that has been adopted/used by an Entity in the UK, will have priority over a trade mark applied for in India on a "proposed to be used basis".

Unregistered trade marks

The Indian trade mark system recognises and provides protection for unregistered (or common law) trade marks. As such, India does recognise rights of symbols, signs, or words, which have acquired reputation through use in commerce.

In order to enforce unregistered rights in India, goodwill and reputation must subsist in the unregistered trade mark, there must have been a misrepresentation on the part of the user of the subsequent trade mark, and damage, actual or potential to the business of the prior user must be pleaded and possible loss of profit from the misrepresentation.

Although the consumer law rights in unregistered trade marks are recognised, they are more difficult to enforce and give the owner limited rights of enforcement.

Country in Focus: India cont'd

Registered trade marks

Registered trade marks provide significant protection over unregistered rights.

• Owners of registered trade marks in India will have both civil and criminal remedies available to them against unauthorised use by third parties.
  

• On a practical level and perhaps most importantly for UK filers, because of the Indian Registry’s practice of relative grounds examination, an earlier trade mark application or registration can be cited as a barrier by the Indian Examiner when he or she assesses the registrability of a new application.
  

• Owners of registered trade marks enjoy a comparatively broader aura of protection beyond the goods and services listed within the classes that have been covered by the registration.
  

• After registration, owners can use the ® symbol, which indicates a registered Trade Mark. Prior to registration the ™symbol should be used instead.
  

• A registered trade mark will also enable the owner to apply to the Indian Customs Authorities to prevent protracted enforcement cases and to help detain the import of infringing goods and suspect consignments. “Infringing goods” under Indian law are defined as goods made, reproduced, put into circulation or otherwise used in breach of IP laws, without the consent of the rights holder or its duly authorised agent. Customs measures only apply to imports of goods that infringe the registered trade mark or the copyright of an owner.
  

• A trade mark registration is valid for 10 years and can potentially be renewed indefinitely.
  

List of well-known trade marks

Unlike the trade mark offices in the UK and the EU, the Indian Trade Marks Registry maintains a list of well-known trade marks. Under Indian trade mark law, if a trade mark has been determined to be well-known in at least one relevant section of the public in India or declared to be well known by any Court or by the ITR, the Registrar shall consider that Trade Mark as a well-known Trade Mark for registration under the Act.

Prior to the Trade Mark Rules 2017, only Courts could declare a trade mark as well-known, but since then a new procedure has been introduced for filing of an application for the determination of a Trade Mark as being well-known by the Registrar.

Having a trade mark determined as well-known in India carries a significant evidential burden but can result in significant benefits (and reduced costs) for the owner in the future.

Once a trade mark is determined as well-known by the Registrar, the Trade Mark Registry shall not register any similar or deceptively similar Trade Mark to the ‘well-known’ Trade Mark across all classes of goods and services. Once the registrar has determined a trade mark as Well-known, the trade mark will be published in the trade mark journal and will be open to opposition for a period of four months. If there is no opposition or the opposition is dismissed, the mark will be entered on the list of Well-known trade marks. Some 117 trade marks are currently listed by the Indian Trade Marks Registry as “well-known”.

Use requirements and non-use cancellation actions

Trade marks can be filed in India by any person claiming to be the proprietor of the trade mark, who has either used it in India or who has a bona fide intention to do so.

A registration may be subject to cancellation if the trade mark has not been put to use for a continuous period of five years from the date of its registration or any subsequent five year periods.

Any interested third party can bring a non-use cancellation action against a registered trade mark. The third party needs to establish that in the previous five-year period the registered trade mark has not been in use. Cancellation action can also be filed on the ground that the registered proprietor never had a bona fide intention to use the mark in commerce.

Examination process

Once an application for registration of trade mark is filed with the Indian Trade Mark Registry, an application number is allotted within one or two working days. The allotted number can be used to track the application through the Online Trade Mark Search Facility.

The trade mark is then examined for correctness (admissibility) and a search is conducted by the Registrar against any any earlier conflicting applications or registrations.

If no issues are raised, the application is accepted and will be allowed to proceed to publication. The Trade mark Registry publishes a journal every Monday with a list of Trade marks that are accepted.

When an application is objected to by the ​Registrar, they will issue an examination report ​and invite the Applicant to respond the Registrar is ​satisfied with the response, the application will be accepted ​and will proceed to. If the ​Registrar is not satisfied with the response, they will fix ​a hearing for the Applicant to appear and address the objections. If the ​objections are waived, the application will be ​accepted and will proceed to publication. If the ​application will be refused the Applicant will have a right to appeal to the ​High Court.

For application for registration of trade marks filed by the national route, a 30-working day turnover for a first examination report following filing is normal. For designations of International Trade Marks, the process can take longer. An Indian trade mark attorney will need to be appointed for corresponding with the Registrar, if any objections are raised.

Country in Focus: India cont'd

Publication and opposition

Once an application is accepted by the Trade Mark Registrar, the trade mark is published in the Indian Trade Mark Journal. If ​no objections are filed by interested third parties within 120 days of the publication, the trade mark will typically proceed to ​registration within 12 weeks from the end of the opposition period.

If the application is opposed by a third party, a hearing will be called by the Trade Mark Hearing Officer.

Both the opponent and the applicant will have the opportunity to appear at the hearing to present their arguments for the ​acceptance or the rejection of the trade mark application. The decision of the Trade Mark Hearing Officer can be appealed to ​the appropriate High Court exercising jurisdiction over the Trade Mark Registry Head office or the branch.

Power of Attorney requirement

A Power of Attorney is required for Indian attorneys to be able to act on behalf of their clients. The Power of Attorney does not ​need to be notarised or legalised. However, this Power of Attorney needs to be Stamped appropriately. Therefore, the Power ​of Attorney needs to be physically provided to Indian Attorneys after execution.

_____________________________________

With thanks to Dr. Mohaan R Dewan, Patent & Trademark Attorney at Podar Chambers in Mumbai for generously providing ​his expertise for this piece.

Client Q&A with Alex Bruce

Managing Director of Adelphi Distillery

Tell us a bit about Adelphi Distillery – how did you come to join the business and how has it grown over the years?

Adelphi takes it name from The Loch Katrine Adelphi Distillery, once a landmark in the Gorbals in Glasgow. The distillery was built in 1826 and went through various ownership changes until it finally ceased production in the late 1920’s. One of the owners, Archibald Walker, was the Great Grandfather of Jamie Walker who subsequently took the name for his new independent bottling company, which he founded in 1992.

His primary aim was to select really unique single casks of Scotch whisky, produced by other distilleries, and bottle them in a completely natural state. Jamie sold the business to 2 west coast businessmen in 2003 and they appointed me to run it in 2004.

When I took over, we had a meagre 3 casks and around 250 assorted bottles in stock, and it didn’t take long to work through them. I was also hitting the ground just as the Single Malt category was really beginning to take off, and it soon became very apparent that our simple concept of selecting, bottling and selling these very limited whiskies was going to be hampered by dwindling supply.

By 2007 we had built our distribution to 18 markets, including the UK, and demand was outstripping supply. We therefore took the decision to begin planning for our own distillery on land next to one of our owner’s farm and estate in Ardnamurchan. t took us several years in planning, design and build, but we ran the first Ardnamurchan spirit in July 2014 and now, 8 years later, have over 14,000 casks maturing on site.

The team has grown from 2 (in 2004) to 30 today and we operate both from the distillery and our bottling warehouse and offices in Fife.

We started selling Ardnamurchan Single Malt at the end of 2020, and have grown our export markets to 33. Turnover has also doubled in the last 3 years, but we are very aware that this is only the beginning of a long and exciting brand journey.

When you opened Ardnamurchan Distillery in 2014, ​sustainability was arguably not as important to ​businesses or consumers as it is today. We ​understand that the distillery utilises 100% local and ​renewable energy sources, and has the capacity to ​produce 600,000 litres of alcohol per year. What ​inspired you to build a distillery with a commitment ​to sustainability?

Sustainability has been at the forefront of our distillery ​design, build and operation for many years. However, ​given our remote location, it was important to us to take a ​much wider view than just “being green”. Yes, we were ​the first Scottish distillery to be 100% fuelled by a ​biomass boiler, using locally sourced renewable timber, ​but we also wanted to create a tangible circular economy ​on the peninsula that could add value to other ​businesses, create and sustain long term employment ​and, thereby, attempt to retain the next generation and ​reverse the population decline.

Eight years down the line, we are proud to have a 100% ​local team and are working with the local Ardnamurchan ​Trust to help fund further education for local students by ​assigning maturing whisky stocks to them, which they ​can then sell back to the distillery once they turn 18.

We will also be encouraging them to look at the distilling ​industry by offering apprenticeships in due course. In ​addition, all of our co-products (from the distillation ​process) are used locally as animal feed, and this, ​combined with becoming a bulk timber customer, has ​reduced heavy transport on the single track road by 50%.

We continuously strive to improve our environmental ​credentials at the distillery, and now with our product ​packaging as well – we were the first Scotch whisky to be ​available in a 100% recycled board carton.

Client Q&A cont'd

Do you think the whisky industry is doing enough to achieve Net-Zero by 2040?

The Scotch whisky industry is well positioned to achieve Net-Zero within its own manufacture, and hopefully work with the 3rd party supply chain as well.

There are already great examples of adding value to co-products using cutting-edge technology. For example, Celtic Renewables have recently scaled up from University testing to a large-volume plant in Grangemouth, converting the liquid co-product pot ale into biofuel. Other distilleries are becoming test beds for hydrogen fuelling, or producing their own biogas for fuelling their logistics – just 2 examples of large scale development that can be passed on to others both in the industry and further afield.

Packaging is also being reduced, and we hope that the days of lavish imported boxes and glass decanters are in decline.

We are also very fortunate to be supported by the Scotch Whisky Association who are committed to help steer us to Net-Zero as soon as possible.

What is next for Ardnamurchan and the wider Adelphi family when it comes to building a more sustainable industry?

The industry has traditionally worked closely together and this is the same when it comes to sustainability now. Some of our early work with biomass and hydro has been successfully adopted by others and, equally, we have taken inspiration from those that have progressed in other sustainable areas: solar, waste and water reduction/recycling, dedicated green teams, energy reduction, reduction and removal of unnecessary packaging. All proactive and pragmatic examples.

You utilise blockchain technology to provide a secure and immutable model of the full supply chain. Please tells us a bit about how you utilise the technology and what benefits it can bring to businesses and consumers.

To many, blockchain is associated with cryptocurrency but, in fact, its primary purpose is to act as a fully incorruptible and secure, third party ledger. We first looked at the use of the blockchain for storing and authenticating our own production process in 2016. Also still in development, we are now recording all of our day to day production and are able to fully inform the consumer through a QR code on the bottles.

The next stage will be to encourage our suppliers ​(barley, barrels etc.) to add their own data to our ledger. ​Not only will this strengthen our authenticity and ​transparency further, but it will also allow us to collect ​and verify additional data for more detailed carbon ​footprint calculations and monitoring going forward.

You are a Master of the Keepers of the Quaich, and ​we understand that your father Lord Elgin, a former ​Grand Master, was instrumental in setting up the ​society. For our readers that are not familiar with ​the Keepers of the Quaich, please tell us a bit about ​the society and your involvement.

The Keepers of the Quaich was primarily founded to ​acknowledge and thank as many people who work for ​and on behalf of promoting Scotch whisky globally. A ​large portion of its current membership is made up of ​those importing, distributing and selling Scotch in ​overseas countries, but it has also begun to recognise ​more of the homegrown expertise in manufacture and ​production in recent years, which has been a very ​welcome development.

Client Q&A cont'd

There are approximately 3000 Keepers and 200 Masters ​of the Quaich looked after by a management committee, ​patrons and the Grand Master. My father was one of the ​earlier Grand Masters and concentrated on ensuring that ​guests at the biannual ceremonies and dinners were ​suitably entertained with the warmest (and slightly light-​hearted) Scottish entertainment possible.

What have been the biggest challenges resulting ​from Brexit?

The Perfect Storm of pandemic and Brexit has enforced ​rapid rethinking when it comes to supply and logistics. ​Rising costs, lengthy delays for key materials, delayed ​exports due to increased paperwork and lack of shipping ​availability – the list goes on. In real terms, cash flow ​planning has never been more important, along with ​warehouse space with the required increases in stock ​holding of materials and backing up of orders that are ​taking months to be collected.

Fortunately Scotch whisky was, and still is, made to be ​enjoyed and our global consumer base continues to ​grown and understand that philosophy, so we will to our ​best to adapt and continue to send stocks to the furthest ​corners.

Which bottles are your personal favourites from the Adelphi Selection and Ardnamurchan range?

I have been very lucky to be part of the Adelphi selection process for nearly 18 years and, over those years, have witnessed some truly remarkable drams. The only sad part is that single cask whiskies can never be repeated – a once-in-a-lifetime marriage of malted barley, yeast, water, wood, expertise and time – but so many good memories. If I had to pick one, it would be a 1965 ex-Sherry butt (500 litre cask) from Lochside distillery (sadly no more) that we bottled at 46 years old. A true time capsule of flavour and complexity.

Ardnamurchan has been a dream-come-true for me, right from design to early production and, now, witnessing the unique west coast style of the mature whisky. We have been fortunate to bring several batches of our whisky to the market since launch in 2020, and have been truly humbled by the response from all over the world, but one of my personal highlights has been to put together a commemorative bottling for our long-time chief “nose” Charlie MacLean in conjunction with my wife’s company MacLean and Bruce.

Lastly, as summer is upon us, what whisky-based cocktail would you recommend for a warm summer’s evening?

While I enjoy the occasional cocktail, especially whisky-based, I am very much at the consumer end. However, we have been incredibly grateful for the skill and support of our friends at The Good Spirits Co. in Glasgow who have come up with some delicious Ardnamurchan-based cocktails recently.

Given the recent weather, a current favourite is the Piña Colardna and is even available pre-mixed in bottle which makes it so much easier to enjoy!

Distilleries rejoice:

enhanced legal protection for ​Scotch Whisky in the US

The Scotch Whisky Association has obtained ​Registration for “Scotch Whisky” as a certification trade ​mark in the US.

Scotland accounts for the largest share of food and drink exports in the UK. Scotch Whisky is the UK’s largest food and drink export, with more than £4.5bn exported to the US in 2021 alone.

It is estimated that this figure will massively increase given that the tariffs on Single Malt Scotch Whisky were suspended back in June 2021.

As such, it comes as no surprise that the Scotch Whisky Association (SWA) has been pushing for the protection of the term “Scotch Whisky” in the US. Protecting the term “Scotch Whisky” will help to stop copycat products from calling themselves Scotch Whisky or a confusingly similar term.

Since the signing of the US - UK agreement on the mutual recognition of certain distilled spirits/spirits drinks in 2019, the term “Scotch Whisky” has had limited protection in the form of labelling requirements in the US.

However, as of 21 June 2022, the SWA has secured registration of “Scotch Whisky” as a certification mark in the US. This means that anyone wishing to use the term “Scotch Whisky” in respect of an alcoholic beverage will need to make sure that the SWA certifies that the product is from Scotland and meets the standards set out in The Scotch Whisky Regulations 2009 and The Scotch Whisky technical file.

In practical terms, this means that the SWA now has the legal backing in the US to protect the term “Scotch Whisky” and go after individuals and organisations wishing to take advantage of the reputation and renown of Scotch Whisky on non-genuine products.

Making Food Waste Easier ​to Digest

In Issue 4 of Scran & sIPs, published in Autumn of 2021, Julie Canet described how food waste collected in our kitchen food waste caddies can be turned into biogas by anaerobic digestion. The biogas produced can be used in the same way as natural gas, such as to produce electricity or heat.

Alternative (and preferably renewable) gas sources are now, more than ever, of vital importance. Anaerobic digestion of food waste into biogas is one method that promises to provide renewable gas whilst also shifting reliance on current major gas producers.

Gas supply crisis – why we can’t rely on our current gas suppliers

In 2021, 90% of the gas consumed in the European Union was imported, with 45.3% provided by Russia, according to the ​European Commission. Since Russia’s invasion of Ukraine, Europe has faced higher energy prices and uncertainty in reliability ​of oil and gas supply. European countries are seeking to reduce reliance on Russian gas imports and, at the same time, ​continue to seek out greener sources of gas to reduce negative environmental impacts.

REPowerEU is a joint European action for more affordable and sustainable energy and aims to terminate the EU’s ​dependence on gas from Russia. One of the goals set out by REPowerEU is to produce 35 billion cubic metres of biogas from ​biowaste such as food waste each year by 2030 (double the previous EU goal). 37 billion euros of targeted investments are ​proposed to support the development of new capacity and infrastructure to accommodate biogas into the gas grid and create ​energy communities.

The UK government offers a number of incentives to support large-scale anaerobic digestion plants, such as the Renewable ​Heat Incentive and the Renewables Obligation.

Food Waste cont'd

Biogas production from biowaste – how it works

Biowaste is naturally digested by microorganisms, which ​produce gases including carbon dioxide, water and ​methane as side products. When digestion occurs in the ​presence of oxygen, the main gases generated are ​carbon dioxide and water. However, when digestion ​occurs in the absence of oxygen – in a so-called ​anaerobic processes – the main gases generated are ​carbon dioxide and methane.

Methane is a particularly attractive fuel owing to the ​relatively large amount of heat released on its combustion ​leading to uses in heating and in electricity generation. If ​biowaste is anaerobically digested in a controlled way, for ​example in an industrial anaerobic digester, then the ​methane produced can be collected, cleaned to remove ​unwanted gaseous impurities, and injected directly into ​the gas grid, or it can be used to produce electricity, e.g. ​for the national grid. There are currently more than 650 ​operational anaerobic digestion plants in the UK, with 88 ​biomethane plants (producing methane that is injected ​directly into the gas grid), and there are currently more ​than 17,000 operational anaerobic digestion plants and ​700 biomethane plants in Europe.

Anaerobic digestion relies on microorganisms digesting a ​feedstock (such as food waste) to produce methane. ​Unfortunately, some of the intermediate substances or ​side products produced during digestion can be toxic to ​the microorganisms or inhibit digestion of the feedstock.

Carbogenics is improving the anaerobic digestion ​process

University of Edinburgh spin out company Carbogenics ​produces biochar materials - Crechar® and Filachar® - ​which are able to absorb inhibitory substances produced ​during anaerobic and/or aerobic digestion and so prevent ​inhibition of digestion. Carbogenics’ biochar materials also ​support the growth of microorganisms on their surface, ​leading to more effective anaerobic digestion. Through ​numerous lab and now full-scale industrial trials with ​major UK biogas operators, it has been observed and ​demonstrated that Crechar® has increased operational ​efficiency by 9% and up to 15% efficiency gains are ​anticipated.

Food Waste cont'd

Crechar® (Carbogenics’ flagship product) is a flaky ​carbon particulate produced by heating secondary ​biomass and fibre-rich paper and cardboard waste, in a ​low oxygen environment. The flaky shape of the resultant ​porous particles allows effective circulation and provides a ​large surface area for the adsorption of inhibitory ​substances and for the growth of microorganisms, ​promoting the growth of biofilm.

Filachar® is a fibrous carbon particulate produced by ​heating non-biodegradable sewage waste (such as wet ​wipes, nappies and sanitary products), also in a low ​oxygen environment. The resultant porous particles find ​use in the removal of odour causing substances in ​wastewater and, in the process, absorb nutrients that are ​able to support the growth of microorganisms. Nutrient-​enriched Filachar® can be collected and used for the ​adsorption of inhibitory substances and for the growth of ​microorganisms in anaerobic digestion.

Not only do Crechar® and Filachar® find use in the ​improvement of anaerobic digestion to produce ​renewable biogas, but they are themselves produced ​from recycled materials, and the by-product (digestate) ​from the anaerobic digestion process finds use as fertiliser ​for farmland. Anaerobic digestion of organic waste using ​Crechar®.

Carbogenics aims to become the leading provider of ​sustainable bio-additives designed for the anaerobic ​digestion and wastewater treatment industries and plans ​to build a new production and R&D facility in Scotland in ​2023. We were fortunate to have the opportunity to speak ​with Ed Craig, Carbogenics’ CEO, who captured us not ​only by noting the potential in the company’s products, ​but also its vision to become a global leader in carbon ​upcycling:

"The world is desperately seeking sustainable and ​secure energy and this has been intensified through the ​brutal and disruptive events occurring in Ukraine. ​Carbogenics’ innovative bio-additive CreChar® could ​become a key ingredient to enhance the anaerobic ​digestion process and this transition through ​transforming local ‘waste’ resources into biochar”.

We would like to take this opportunity to wish Ed and the ​Carbogenics team the best of luck in planning and ​building their new production and R&D facility. See ​Carbogenics’ website: ​https://www.carbogenics.com/our-story/ for more ​information on its biochar products and further uses of ​them.

Co-Author

Donald McNab

Principal Associate

dmcnab@marks-clerk.com

Patenting of Biotech ​Inventions in the Food & ​Drink Sector

When looking to protect innovation in the food and drinks ​industry, the type of intellectual property that first springs ​to mind for many people is trade secrets: where the ​invention is retained in-house and only known to a select ​few within a company. Some of the most well-known ​examples of trade secrets are in the food and drinks ​sector: for example, the Coca Cola® recipe, Irn-Bru® ​recipe and KFC®’s spice blend recipe, which are only ​known to a handful of people in the world.

A common misconception is that inventions in the food ​and drinks sector are preferably protected through trade ​secrets, as patents have a finite lifespan of 20 years and ​necessitate a public disclosure of the invention. However, ​trade secrets are often difficult to enforce and a key ​drawback is that they offer no protection against third ​parties who independently arrive at the same product or ​process. It can also be difficult to police in a rapidly ​growing company, where employee turnover is high. In ​some instances, seeking protection through a patent ​should be considered.

Granted patents in relation to food and drinks (under ​International Patent Classification class A23) are reported ​to account for only about 1% of all granted patents by the ​European Patent Office, but there appears to be an ​increasing trend in applications for food and drink related ​inventions, such as meat-replacement products, dairy ​substitutes and bioceuticals (e.g. dietary supplements). ​Recent filers in this space include Beyond Meat, Inc. and ​Impossible Foods Inc. who both work in the field of plant-​based meat substitute products and Oatly who provide ​oat-based products as alternatives to dairy.

Other interesting examples include the use of ​bacteriophages (a type of virus that infects bacteria) to ​prevent food spoilage and modified yeast strains to ​improve fermentation processes. These type of innovation ​often involve the use of microorganisms or other type of ​biological material and can be referred to as “biotech” ​inventions.

Biotech Inventions cont'd

What are the requirements for obtaining patent ​protection for food and drink-related biotech ​inventions?

The requirements for obtaining a patent for a food or drink ​biotech invention are the same as for any other sector. ​The invention must be novel, inventive and capable of ​industrial application. The patent must also provide a full ​and complete description of the invention to allow a third ​party to repeat what has been done.

In any patent, the scope of legal protection is determined ​by the claims: a set of statements that define the ​invention in its broadest sense. These claims should aim ​to define the innovation (in as broad a way as possible) by ​describing the structure and/or components of the ​product. In many cases, claiming a new product is fairly ​straightforward and can be done by defining a chemical ​structure of a small molecule, a biological sequence of a ​peptide, and/or by describing the relative amounts of ​components in a composition. However, for some types ​of food and drinks innovation and particularly those ​relating to biotech innovations involving the use of ​microorganisms and biological materials, how to best ​describe and define such inventions can be challenging.

Often it is not possible to fully describe some types of ​biological material or microorganisms by reference to their ​structure and the only way to claim such products is to ​reference a deposit of the biological material.

For example, in the case of a new bacterial strain that is ​needed to make a particular protein, a sample of the ​biological material must be deposited with a recognised ​independent depository institution, such as NCIMB (see ​the accompanying interview with the NCIMB in this ​publication for more information on their patent deposit ​service). The biological material must be deposited not ​later than the date of filing of the patent application, and ​the depository institution and the accession number ​should be stated in the application.

Plant variety rights

Where an innovation lies in a new plant variety, it is worth ​noting that plant varieties in themselves are not eligible for ​patent protection. These are protected by another form of ​intellectual property right known as plant variety rights. ​This topic will be further explored in future issues.

Biotech Inventions cont'd

What are some of the common pitfalls of patenting ​when making a deposit?

Not leaving sufficient time to make a deposit

If an invention involves a biological material which is not ​available to the public, the material must be deposited ​according to the Budapest Treaty at a recognised ​depositary institution prior to the filing date of the patent ​application.

Importantly, viability testing of the submitted material is ​conducted by the depository institution and the date of ​deposit is taken to be the date on which viability testing is ​completed. Depending on the biological material ​submitted, it can take up to a week or longer for the ​viability checks to be finalised, and therefore the deposit ​is recommended to be made as soon as possible.

Patent applications can often be prepared and filed in a ​short space of time, for example, when a public ​disclosure is about to take place. However, where there ​could be a need to reference a deposit of biological ​material in the patent, it is important to plan ahead to ​leave enough time for that deposit to be made and the ​viability testing completed prior to filing.

The depositor differs from a named applicant

The depositor of the biological material should be one of ​the named applicants of the patent application. If not, the ​applicant must have been authorised to refer to the ​deposited biological material and the depositor must have ​consented to it being made available to the public from ​the date of filing (i.e. the authorisation and consent of the ​depositor must have been existent as from this date). If ​these criteria are not met, then it cannot be remedied at a ​later stage in the patent process which could have fatal ​consequences for the patent.

If it is unavoidable that the depositor cannot be one of the ​name applicants, it should be ensured that the ​authorisation documents are in place before the date of ​filing of the patent application.

For more information on any of these points, please get in ​touch with any of our colleagues at Marks & Clerk.

Lowering Emissions in the ​Agri-supply Chain with ​AI/Data Science

The UK, like many countries around the world, has set a target of “net zero” greenhouse gas (GHG) emissions by 2050; Scotland has targeted 2045. In the North East of Scotland significant attention has been paid to the role the “Energy Transition” has to play in achieving this target. However, a transformation of the energy supply mix is only one part of meeting the ambitious targets set.

The Food and Drink sector has a vitally important role to play in meeting the net zero targets, and we were excited to see the North East is embarking on an innovative project looking to reduce the sector’s carbon emissions. Scientists at the University of Aberdeen are working with businesses and industry stakeholders across the UK in the Enhancing Agri-Food Transparent Sustainability Project (EATS). The project looks to explore measures across the agri-food supply chain which includes, not just primary producers, but also processors, retailers and consumers as well. While past advances in the collection and dissemination of information have improved the monitoring and governance of the supply chain, existing approaches still suffer from limitations in data gathering and sharing. For example, an over-simplification of the supply chain and power dynamics influencing information inclusion/exclusion can negatively impact decision-making processes.

As stated by one of the project’s investigators Dr Leontidis, “The project is based on three pillars, described as SEE-SHARE-ACT, encompassing the role of sensors and carbon reporting tools in capturing data about agri-food processes (SEE), the development of a digital platform able to manage and report sustainability data (SHARE), and the use of data analytics and machine learning to support decision making (ACT)”.

Collected data (SEE) is to be used to build a trusted digital sustainability platform (SHARE) where farmers, producers, and industry stakeholders can see the level of emissions created by food and drink items throughout their production, allowing them to identify where improvements in processes could be made to lower emissions and including tools to encourage changes in practice (ACT).

This project is an example of finding new applications for relatively known technology to address a problem. Exploiting ML/AI technology to improve the efficiency of existing processes rather than introducing entirely new structures and mechanisms may have many advantages. Replacing known operating systems with new cutting-edge technology can be costly, and potentially risky. Again referring to the energy transition of the North East, replacing onshore and offshore oil and gas wells with solar panels and wind turbines, for example, is a costly and potentially risky endeavour. While this may ultimately be necessary, improving the efficiency of these existing energy producing systems with known technologies like digitisation, and AI/ML should not be incurred as another lever to meet ambitious energy targets. The use of these data science tools to the food and drink supply chain is an existing new sector for innovation.

For more insights like this, please visit our Agritech page here.

Q&A with Dr. Samantha Law

Curator at NCIMB (National Collection of Industrial Food and Marine Bacteria)

What is NCIMB?

NCIMB is a well-established, Aberdeen-based provider of ​analytical services, microbial cultures and biological ​material storage. NCIMB stands for “The National ​Collection of Industrial, Food and Marine Bacteria” and ​the name results from the merging of three separate ​culture collections, including the National Collection of ​Food Bacteria. Our culture collection was first was ​established in the 1950s as a government-funded ​microbiological resource, before being successfully spun ​out and transitioned to a commercial company. In fact, ​we are celebrating our 40th anniversary as a limited ​company this year. Today, we have many loyal customers ​from a variety of industry sectors around the globe, and ​have developed a range of services to meet industry ​need, in addition to supplying microbial cultures.

What kind of services do you provide?

We supply, preserve, store, identify, screen, compare, ​detect and monitor microorganisms.

Scientists use microbial strains from our culture collection ​for quality control purposes as well as research and ​development. The food-related strains in the collection ​include many “good” bacteria isolated from fermented ​foods and dairy products, as well as food spoilage ​organisms.

The range of services we provide are essential for ​organisations seeking to develop new microbial products ​and processes. We can sequence and screen candidate ​strains for use as probiotic food supplements or other ​food production purposes. We can also help our ​customers meet regulatory requirements to ensure that ​microbes used in the food chain do not spread ​antimicrobial resistance.

We identify bacteria, yeasts and filamentous fungi for our ​customers in the food, drink and pharmaceutical sectors. ​Our sequencing service is used by these customers who ​need to control microorganisms throughout the ​manufacturing process. These strains are usually isolated ​during environmental monitoring or through the quality ​checks of the raw ingredients and or / end product.

NCIMB also provides confidential offsite storage for ​companies that want a backup of important production or ​research strains, and stores patent deposits, as an ​International Depositary Authority (IDA) under the ​Budapest treaty.

What type of materials are deposited from the food ​and drinks sector?

The food related materials we are most commonly asked ​to store for patenting purposes are actually plant seeds ​for crops. Of course, microorganisms are used in many ​production processes in the food and drink sector and we ​accept deposits of bacteria, bacteriophages, and ​filamentous fungi, yeasts and plasmids for patent deposit.

Q&A cont'd

How does NCIMB support the patenting process?

With any patent, full details of the invention must be disclosed to the public. From the details given, an expert in the field must be able to reproduce the invention described. The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure came into effect in 1980. Under the Treaty, a number of microbial culture collections are recognised as International Depository Authorities (IDAs). No matter where the IDA is located, it must comply with the regulations set out by the Budapest Treaty. An important aspect of the Budapest Treaty is that it is only necessary to make one deposit, rather than a deposit in each and every contracting state in which the patent is filed, saving applicants time and money.

If a microorganism is an essential part of a patented invention, it must be deposited in an International Deposit Authority (IDA), like NCIMB. It is the role of the IDA to store the deposited material for the length of the patent and be able to furnish samples to those that are entitled to receive them.

Briefly, what are the steps involved in making a patent deposit at NCIMB?

The first thing we encourage people to do, is give us advanced warning of the intention to deposit. This helps us to make sure we have everything ready to handle the deposit as efficiently as possible. For example, if the deposit is a microorganism that requires a specific kind of growth medium we can make sure we have that ready for it arriving.

Then, of course, there are forms to be completed! The application form sets out our terms and conditions and constitutes our contract with the depositor, and the accession form records the information required to handle the material correctly and safely.

The next step is to send the material, which undergoes viability testing on receipt. This is very important with respect to the patenting process because the material has not been officially deposited, until it has been found viable. If it is not viable, a new sample must be sent, and this will be processed as a new deposit. The time required for testing varies greatly depending on the organism, so it is something to bear in mind if you are working to a deadline.

When viability testing has been successfully completed, we issue an official receipt and viability statement with an accession number, date of deposit and confirmation that the material was found to be viable.

Who and when can third parties access the ​materials deposited at NCIMB?

It is acknowledged that IDAs cannot be expected to be ​familiar with the patent laws of countries throughout the ​world and to decide if a third party is entitled to receive a ​particular deposit. To overcome this the release of patent ​deposit samples by an IDA is governed by Rule 11 of the ​Budapest Treaty. Rule 11 is divided into sections, each ​specifying to what type of third party is legally entitled to ​receive a sample:

• Rule 11.1 Interested Industrial Property Offices who ​are either processing or granting a patent
  
• Rule 11.2 Authorisation of the Depositor where ​samples are sent back to the depositor or a third ​party nominated by the depositor
  
• Rule 11.3 Third parties that are legally entitled where ​samples are obtained through the Patent Office or ​through evidence that the patent has been granted.
  

Samples are issued by IDAs without restriction, however ​the depositor receives a notification from NCIMB about ​every release of their deposited patent material and who ​has received it.

Q&A cont'd

What are some of the recent trends and developments in the microbial product and process development space in relation to the food and drinks sector?

There has been an explosion of interest in the human microbiome and its role in health, which as fed through to microorganisms found in various fermented foods and drinks. Traditionally, fermented food and drink manufacture often relied on microorganisms naturally present in the raw materials, and we have recently been adding more strains isolated from these kinds of sources to our culture collection so that we can make them available to researchers.

Food and drink manufacturers are not only interested in understanding more about the health benefits of the different strains but also their impact on flavour and quality, and there is increasing interest in looking more closely at this, for example by undertaking microbial community analysis to compare microbial populations from different sources.

As society moves away from its reliance on fossil fuels to ​an increasingly biobased economy, and looks to reduce ​the carbon footprint of the food and drink we consume, ​alternatives will be required for all kinds of raw materials ​and ingredients throughout the food production process. ​From crop protection through to production strains, ​alternative protein sources, preservatives and ​biodegradable packaging, there is increasing interest in ​the use of microorganisms.

There is so much potential for microorganisms to tackle ​issues facing the food and drink sector, but it is important ​to remember that a key consideration for any ​microorganism intentionally used in the food chain is that ​it does not add to problems associated with antimicrobial ​resistance, and we are increasingly being asked to screen ​strains in that respect.

For more information, NCIMB has produced a guide to ​making patent deposits, which you can download here.

As told to

Jiwon Park

Trainee Patent Attorney

jpark@marks-clerk.com

Meet the Team

Mairi Rudkin

Partner

mrudkin@marks-clerk.com

Areas of expertise

My practice lies in the chemical and life sciences field. I ​handle applications in the pharmaceuticals (drug ​substances and formulations), polymers, aquaculture and ​food technology space.

Client overview

My clients range from multinational corporations to fast ​growing SMEs and start-ups.

Career highlights

I enjoy working with clients on their long term IP strategy ​and there is nothing so rewarding as seeing a filing ​programme come together - and it helping my client on ​their way to their next business goal. Other highlights ​include some of the opportunities I have had to travel and ​visit clients and colleagues during the course of the job (I ​love a tour of a research facility and to get a chance to ​chat to the inventors over a coffee or lunch). Most recently ​I’ve had the chance to visit Finland for the first time.

Favourite dish

It would probably have to be a curry - Lamb Bhuna or ​Chicken Tikka Dupiaza (best enjoyed after a day in the ​Scottish hills)!

Signature meal to cook at home

Kale and onion pizza or mint pea pasta is a crowd pleaser ​in our house.

Top tipple

I generally go for a gin and tonic. We have plenty of gins ​to choose from in Scotland and Harris Gin is my favourite ​at the moment. Otherwise I enjoy a good cocktail.

Favourite restaurants

When I used to live in Edinburgh, one of my favourite ​restaurants was Blonde on St Leonards Street - we ​discovered it during our first year at university and kept ​going back - so great food and a lot of good memories. In ​Glasgow, I really like Gamba.

Dream dinner guests

Dave Grohl and Steve Cram. I have just finished reading ​Dave Grohl’s autobiography and he seems like a guy with ​a lot of great stories. Steve Cram is a brilliant ​commentator and would no doubt be able to give me ​some tips on how to get my parkrun time down a bit.

Most adventurous food/drink you’ve ever tried

I’m not sure it was the most adventurous but one of the ​weirdest meals I’ve ever eaten was a curry for breakfast ​halfway up Mount Kinabalu when we were in holiday in ​Malaysia. That same holiday I attempted a local Laksa ​soup but it was a shade too spicy for me and I had to ​abandon it halfway through.

Hobbies

Running and reading.

Meet the Team

Ahmed Aziz

Trainee Patent Attorney

aaziz@marks-clerk.com

Areas of expertise

I work within the Electronics and Software practice. I ​handle applications ranging from electronic engineering ​and computer science to physics and biophysical ​sciences.

Client overview

I have worked with a wide range of clients, from large ​multinational organisations and universities to start-ups ​and private individuals.

Career highlights

At this early stage of my career, everything feels like a ​highlight. As small as my contribution might be, it’s a ​great feeling when something I’ve worked on helps to turn ​and idea into a legally protected invention.

Favourite dish

A Mediterranean mezze platter, hummus, falafel, ​babaganoush, tabbouleh, pickled vegetables and pita ​bread.

Signature meal to cook at home

Grilled cheese sandwich if I’m in a hurry, seafood biryani if ​I’ve got all evening. Given a few days, I can make ​sourdough bread for my grilled cheese (see below!).

Top tipple

A pint of Guinness, or trying to work my way through the ​long list of Scotch whiskies I haven’t had yet. I drink most ​of my water in the form of tea.

Favourite restaurants

When I lived in London, it was an Afghani restaurant ​called Khyber Pass. I haven’t lived in Edinburgh long, but ​Paradise Palms stands out. That being said, there’s ​nothing like cooking for yourself so my kitchen wins every ​time.

Dream dinner guests

Noam Chomsky and Zack de la Rocha

Most adventurous food/drink you’ve ever tried

‘Nathan’s famous frog legs’ at Coney Island beach in ​Brooklyn.

Hobbies

Cycling, drawing and baking. Looking to add sea/wild ​swimming to the list as it seems quite popular in ​Edinburgh!

Meet the Team - Special ​Edition!

In a slight break from tradition, we would like to use this issue to Congratulate the Team too!

Noelle is based in our Edinburgh office and earlier this summer celebrated her wedding to Mike at Hopetoun House. The whole Scran and sIPs team would like to send our warmest congratulations on such a happy occasion.

As food and drink specialists, we were obviously particularly impressed with the happy couple featuring atop their wedding cake (see top right)!

Cross Office 'Challenge' - ​with a twist!

Regular readers of Scran and sIPS will know how much we enjoy a Cross Office Challenge. We've seen favourite family recipes from Aberdeen and Glasgow and recipes inspired by Scottish heritage from Edinburgh, but for this issue we have moved out of the kitchen to a lovely restaurant in South Queensferry called Rail Bridge Restaurant.

As global travel continues to open up, we were delighted to share some cross office expertise (AKA food and drink!) with our colleague Martin Gutwillinger from our Luxembourg office. In the photograph below you can see Martin enjoying sunset drinks with Kiera Cloete, one of our talented trade mark administrators in our Edinburgh office.

In the background you can see one of Scotland well known sights, the Forth Bridge. The bridge has been dubbed one of the greatest feats of British Engineering and has even been granted UNESCO World Heritage.

We can't wait to host more of our colleagues from around the world to sample more Scottish delights soon!

Marks & Clerk set up its first office in the UK in 1887. Today, we’re a leading global intellectual ​property firm, working in partnership with businesses of all shapes and sizes all over the world. ​Providing them with people whose legal, technical and commercial expertise exactly meets their ​needs. Shaping our services around them. Protecting, enforcing and maximising the value of their ​intellectual property to support them in achieving their business ambitions.

We have a passion for the world of food ​and drink

The world of food and drink is subject to constant change. Gaining and retaining the competitive ​edge and preventing competitors from reaping the rewards of your research and investment is a ​constant battle. We make sure your IP is properly protected as you expand into new product lines ​or territories. No other IP firm has the in-house capability of Marks & Clerk in technological ​knowledge and legal expertise.

Industry focus

With Marks & Clerk, you’ll work with people with a passion for the world of food and drink – ​people who are immersed in the changes taking place in the sector and able to anticipate ​potential IP opportunities and problems.

To find out more, visit www.marks-clerk.com or email info@marks-clerk.com