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Comment: Novelty matters in the energy drinks market

Author : By Joanna Thurston, partner and patent attorney at Withers & Rogers.

18 December 2013

A seemingly straightforward patent application for a composition intended to provide and maintain mental alertness has been the focus of a patent dispute lasting several years. This just goes to show that in the world of energy drinks novelty definitely matters.

The patent (EP1196050) was originally filed in 2003 and aimed to provide a composition which would rapidly increase glucose levels without raising them to an excessive level. This is, indeed, the general aim of many energy drinks which are on the market.

The claim in the patent as granted was quite broad and comprised of a beverage composition characterised by:

(a) from about 0.1% to about 15% of one or more monosaccharides, by weight of the
(b) from about 0.1 % to about 15% of one or more disaccharides, by weight of the
(c) from about 0.1 % to about 15% of one or more complex carbohydrates, by weight of the composition;
(d) a component selected from the group consisting of bracers, flavanols, and mixtures thereof; and
(e) more than about 60% water.

So, essentially, the composition could comprise water, some sugars, and caffeine. Not exactly a ground-breaking invention I hear you say.

Consumer goods giant Unilever didn’t think so either. The company opposed the patent (filed in the name of Procter & Gamble and subsequently transferred to The Folgers Coffee Company) arguing, amongst other claims, that the patent lacked novelty over products already on the market.

The claims were narrowed to firstly specify that maltodextrin is the complex carbohydrate, and secondly to include a specific ratio of monosaccharide: maltodextrin. Unilever were still unhappy and appealed the decision. The case was sent back for further examination and was finally maintained, some 7 years after grant (grant itself only taking 3 years from filing), with a narrower ratio of monosaccharide: maltodextrin.

This example of a lengthy opposition and appeal process illustrates perfectly how getting a patent granted may not be the end of the matter! If you feel very pleased at the broad coverage provided by a patent, others may not feel the same. Of course, many patents survive post-grant attack, either totally unscathed, or as in this case, in amended form. On the one hand, this particular outcome allows The Folgers Coffee Company continued protection for their product. However, there is a greater degree of commercial space for competitors like Unilever to develop and market their ideas.

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