IP takeaways as litigation between The Better Meat Co and Meati ends

The common commercial focus of The Better Meat Co (BMC) and Meati Inc – the use of fermentation-produced fungal mycelium as a meat alternative – has attracted much attention, but increasingly for reasons distracting from the advancement in bioreactors required to attain high fungal slurry production coupled with suitable processing.

The two startups (Meati Inc being the food arm of Emergy Inc, originally branded as Meati Foods) became embroiled in US litigation over what Emergy termed ‘stolen IP’. Both have now agreed to walk away from this litigation, ending a two-and-a-half-year battle after a motion for summary judgement by BMC and a resulting court order on 7 June 2024. For startups seeking to take forward innovative technologies in the protein production field – and indeed in any technology – there are important takeaways from the BMC versus Meati IP dispute.

The starting takeaway is well recognized. IP can be an important driver for investment, but this can quickly evaporate if IP comes under attack by a competitor. This was the problem faced by BMC and was a driving force for its application for summary judgement. Unfortunately, BMC was not in a position to negotiate some form of useful cross-licensing of IP, which may be a desirable route out of IP conflict in some instances where there are differing portfolios of patent claims.

The problem for BMC was conflict with Emergy/Meati over inventorship and the alleged theft of trade secrets/misuse of confidential information in relation to their initial US patent family. This erupted once the foundational patent of that family, US Patent 11,058,137 (the ‘137 patent), granted in July 2021, named Augustus Pattillo as the sole inventor. This was before issue of any relevant patent claims to Emergy, and was for good reason a cause of surprise and annoyance to Emergy’s founders. Patillo had spent time working with them under an NDA while having a Department of Energy fellowship at the Argonne National Laboratory.

The US litigation between BMC and Emergy/Meati may have ceased but it remains to be seen if this is just round one of a longer battle conducted via other routes

At the time, a focus of Emergy’s founders was making advanced electrochemical materials utilizing the fibrous textural properties of dried mycelial masses, but they pivoted their interest in fungal mycelium to food upon recognizing that mycelial filaments resembled strings of muscle in meat. The suggestion from the BMC versus Emergy/Meati litigation is that this pivot was underway before Patillo moved on from Emergy. Hence, the ‘rub’ between BMC and Meati was over the information foundation for BMC’s patent claims, including the move to make Emergy’s founders inventors of the ‘137 patent.

Meati’s attempt to change inventorship and thereby ownership of the ‘137 patent and any related patent was dismissed due to lack of evidence to corroborate that Emergy’s founders had contributed to the actual claim terms. The claims of the ’137 patent were necessarily drafted so as to be directed to products and methods having specific features. The main claim was directed to a shelf-stable protein food ingredient comprising filamentous fungal particles of the genus Neurospora. Independent claim 13 covered producing such a protein food ingredient starting with fermentation production of a fungal biomass slurry. Significantly, these claims were not without further definition of the fungal particle product and production method. They were more than claiming a mere concept.

Determination of inventorship is important for not only patent ownership but it also needs to be kept in mind that some countries, including the USA, have first filing requirements. In some countries, it can also bring reward to an employee under law, at least if the claimed invention is of outstanding benefit to an employer. Good practice is therefore to have good documentation of who is doing what on a project. The European Patent Office applies the problem-solution approach to the inventive step and a sound priority claim can only come from enablement of a technical solution to a problem. It is against this criterion of enablement of the invention as claimed that inventorship falls to be determined.

Maintenance of a trade secret can go hand in hand with seeking patent protection or in some instances may be commercially more advantageous – e.g. a special food recipe which is difficult to precisely reverse determine or particular tweaks to a manufacturing process where the core process is patented. However, one cannot simply announce that information is a trade secret for a trade secret to be recognized. For a trade secret to subsist as a protectable asset, it must be information that is: a) secret and not generally known; b) has commercial value because it is secret and c) been subject to reasonable steps by the person lawfully in control of the information to keep it secret.

Good documentation is again paramount. It remains an open question whether BMC acquired trade secret information which set them on a path to successful patent claims as distinct from founding true inventorship outside of the company.

Interestingly, at the European Patent Office, Emergy have a foundational European patent Application (publication no. EP3801554A) deriving from the published International Application no. WO2019/237059 entitled ‘Methods For Growing Fungal Mycelium And Forming Edible Products Therefrom’. This has an earlier priority claim than BMC’s ‘137 patent and their corresponding European application, EP3852543A, but is only citable for assessment of strict novelty against the BMC foundational application at the EPO. It is thus not surprising to see that only later filed international patent applications in the name of Emergy have been subject to third-party observations. The US litigation between BMC and Emergy/Meati may have ceased but it remains to be seen if this is just round one of a longer battle conducted via other routes. In the meantime, BMC has a published International Application pending entitled ‘Improved Airlift Bioreactor’, which perhaps reflects the real need for fungal mycelium to compete with animal meat.

• Acknowledgement to Dr Claire Irvine, Partner, HGF, for her input into this article

Kerry Rees is a Partner and Patent Attorney at HGF. He holds a Master’s degree in biochemistry from Oxford University and advises clients on IP in a wide variety of food-tech disciplines. This article is republished from the Q3 2024 edition of Protein Production Technology International, the industry's leading resource for alternative proteins. To subscribe to all future editions, please click here