Food, Beverage and FMCG Patents

Like their foreign counterparts, the trend amongst Australian and New Zealand supermarket and like retailers has been to sell products invented by innovator food and beverage companies under the retailer’s brand at a cheaper price. The upshot is that it has become even more critical for food, beverage and fast moving consumer goods (FCMG) companies to utilise the patent system to protect their products in Australia and New Zealand. By doing so, these companies have more leverage with the supermarket and like retailers that they supply.

Our experience is that Australia’s Innovation patent system, which permits patents for “obvious” inventions finds particular application to food and beverage related inventions because it is more likely that Innovation patent claims can be obtained to downstream products which are sold on the retailer’s shelf. This means that infringement can be much more easily policed and enforced.

Another issue particular to food companies is that the time from conception of the invention to market launch is much shorter than in other industries where regulatory approval is required before a product can be legally commercialised. What this means is that infringement assessment is more frequently required for food and beverage inventions, and on a more urgent basis.

Further, product-by-process claims are allowable in Australia and irrespective of whether the product itself is patently distinct from other products known at the relevant time. Also, in New Zealand, obviousness cannot be assessed during examination. These things mean that these countries will remain of interest to multi-national food companies and as a consequence, the patent landscape is relatively complex.

Given the need for regular and frequent infringement assessments, our focus is on providing cost effective and yet comprehensive patent searching and assessment and we have developed a staggered, stepwise model for doing so for our Australian, New Zealand and foreign multi-national clients.

We also draw on a team of patent attorneys having speciality in the chemical, biotechnical and engineering arts to provide a highly experienced technical team for patent drafting, prosecution and portfolio management.

Freehills Patent Attorneys technical range of expertise includes

  • Milling
  • Baking
  • Fermentation
  • Yeast genetics & molecular biology
  • Dough emulsifiers, improvers & additives
  • Natural sweeteners
  • Soft drink & beverages
  • Meat processing
  • Dairy products
  • Whey processing
  • Waste processing

Freehills Patent Attorneys expertise in action

We manage the patent estate of one of Australia’s largest food company’s on a global basis. The work involves novelty searching, patent drafting, filing and prosecution and infringement searching. We are also closely involved with managing outsourced research on behalf of the client.

We advised an Australian FMCG company on the infringement risk pertaining to its release of a commercial product. This work, requiring the formulation of a complex search strategy and an assessment of a large number of patents, was carried out on an urgent basis, enabling the client to confidently release the product for sale through Australia’s two largest supermarket chains. The product is pivotal to the continued success of the company and consequently, the work is ongoing as we continue to monitor for infringement risk.

Meet our Food, Beverage and FMCG experts