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

Following an appeal by Nestlé, the Boards of Appeal at the European Patent Office have revoked EP 2 706 867 (case ID: T0875/21 – 3.3.09), 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.

Nestlé wins on appeal

Originally, in proceedings which took place in March 2021, the EPO Opposition Division had upheld EP 867 in amended form. Here, 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.

A growing market

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 $4.97 billion in revenue in Europe alone. Globally, it is worth  US$12.75bn, 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.

Representative CMS Cameron McKenna Nabarro Olswang is increasingly working for Nestlé in the protein opposition field, as well as in drafting patents covering Human Milk Oligosaccharides (HMOs) which are used in the manufacturing of infant formula.

Jane Hollywood

Representing emerging technologies

All proceedings were heard via video conference, both at the Opposition Division and Boards of Appeal stage. During opposition proceedings, Nestlé’s internal representatives led for the company. However, during the appeal process, it handed over the reins to CMS partner and patent attorney, Jane Hollywood.

Nestlé is a long-term client for the international mixed firm, with the two working together for at least ten years. Over the past two years, CMS has become more involved in opposition work and patent drafting for the company.

Dutch patent attorney firm Vereenigde Octrooibureaux represented Ojah in both the Opposition Division and the appeal proceedings. Partner Hajo Kraak, who led the V.O. team, has extensive in-house experience, having worked for biosimilar companies such as Organon prior to joining V.O. He most often works in chemical, pharmaceutical and nutritional science cases.

French mixed IP firm Lavoix represented the second opponent Clextral in both the opposition and appeal proceedings. Here, Romain Toucas, who the firm elevated to partner in 2022, led for machinery company Clextral. He has particular expertise in mechanical and electrical engineering, as well as EPO opposition cases.

For Nestlé
CMS (London): Jane Hollywood (partner, patent attorney)
In-house (Vevey): Béla Györffy (lead patent counsel), Hansjörg Dinger (patent counsel)

For Ojah
Vereenigde Octrooibureaux (The Hague): Hajo Kraak (partner, patent attorney)
In-house (Ochten): Wouter Jansen (technical director), Frank Giezen (CEO)

For Clextral
Lavoix (Paris): Romain Toucas
In-house (Firminy): Lionel Danos (market manager green energies), Sylvie Brunel (innovation and process director), Laurent Guimet (mechanical engineer and IP specialist)

EPO Boards of Appeal, T 0875/21
Andreas Haderlein (chairman); Christian Meiners, Wolfgang Sekretaruk (members)