Nestlé and Clextral revoke Ojah plant-based protein patent at EPO

The European Patent Office (EPO) Boards of Appeal have revoked an Ojah patent covering plant-based protein technology, as reported by JUVE Patent. Nestlé, one of the main opponents in the proceedings, has invested heavily in this increasingly popular segment of the food retail market. This growth, combined with developments around food technology and the manufacturing process, means future litigation over meat-substitute proteins is more than likely to occur.

Following an appeal by Nestlé, the Boards of Appeal at the European Patent Office revoked EP 2 706 867, which belongs to meat-substitute protein manufacturer, Ojah. The proceedings, which took place in April, have led to the patent being revoked in its entirety.

Originally, in proceedings which took place in March 2021, the EPO Opposition Division upheld EP 867 in amended form. Back then, both Nestlé and French company Clextral acted as opponents.

However, during the subsequent appeal process, the board found that all requests on file lacked inventive step. It then offered Ojah an opportunity to withdraw all requests on file, as well as its agreement to the patent’s background text. Under Article 113(2) EPC, the appeal board could not issue a fully reasoned decision regarding the lack of inventive step, instead revoking the patent due to a lack of approved text.

Article 113(2) under the European Patent Convention states that, “The EPO shall examine, and decide upon, the European patent only in the text submitted to it, or agreed, by the proprietor of the patent”. In this case, the EPO had no text from which it could examine the patent.

EP 867 covers a ‘Method of making structured protein compositions,’ which is a process whereby vegetable protein compositions, in this case soy proteins, are transformed into meat-like structures. Such a process is integral in the development of meat substitute foods, which are growing in importance as increasing numbers of consumers eschew meat. According to Statistica, in 2023, the meat-substitute products market generated US$4.97 billion in revenue in Europe alone. Globally, it is worth US$12.75 billion, and is projected to grow annually by 27.78%.

As such, food and drink production companies are increasingly concerned with protecting and growing their market share. Switzerland-based multinational company Nestlé is increasing its focus on alternative protein sources and its plant-based portfolio – through new products such as vegan meat-substitute burgers, as well as by making classic snacks, such as Kit-Kats, vegan.