Patty patents: Canadian courtroom grilling in the works?

Author(s): Nathaniel Lipkus, Daniel Hnatchuk, Kaitlyn Margison

Aug 17, 2022

There is a new beef in the plant-based meat market, but you won’t find this one on the shelves of your local grocery store. As the market for improved plant-based and other meat substitutes matures, with improved technology and increased consumer adoption, incumbents have turned to intellectual property to protect their market share and overcome competitive threats.

Heme-protein patent dispute: Impossible Foods v. Motif FoodWorks

Impossible Foods, a plant-based meat producer with products in grocery stores and fast-food chains, recently initiated a U.S. patent infringement action against Motif Foods Works Inc., a food technology company that started out producing plant-based ingredients and has recently moved into the plant-based meat market. In the action, Impossible Foods claims that Motif’s Hemami ingredient infringes their patent covering a “heme-containing meat replica”.^[1] Motif then filed a petition with the U.S. Patent Trial and Appeal Board (PTAB) to invalidate the patent, alleging the claimed ingredients have been sold in food products for decades and are not Impossible’s invention.

At the centre of the dispute is heme, an iron-binding molecule commonly found in animal and plant proteins and a central ingredient in certain Motif and Impossible products. The concept is that heme-based proteins make meat taste like meat and mimics the reddish-pink colour that is a hallmark of traditional beef burgers.^[2] According to Impossible, the two companies use distinct heme-protein sources. Motif uses a myoglobin protein produced naturally in cows. Myoglobin is a major source of heme in meat, occurring most often in muscle tissue. Impossible uses a leghemoglobin protein originating in the roots of certain plants like soy, but functionally identical to myoglobin. Leghemoglobin is not produced in the body of any animal species.^[3] Based on public sources, it appears both companies make the proteins in genetically engineered yeast using a fermentation process common in beer-making.^[4] Impossible alleged that Motif’s use of this protein in burgers infringes the Impossible patent.

The sole independent claim of the applicable patent is to a “beef replica” product comprised of a “muscle replica” comprising 0.1%–5% of a heme-containing protein, and a “fat tissue replica comprising at least one plant oil and a denatured plant protein, that are assembled in a manner that approximates the physical organization of meat.”^[5] Motif alleges that this claim and the 16 others are anticipated by or made obvious in light of a 2006 patent application, which discloses methods for making soy-based proteins that may be incorporated into 100% meat-free or up to a 50% meat-product, and other prior art.^[6] Motif claims that a person of ordinary skill in the art would already know that an alternative-beef product would require the 0.1%–5% claimed heme-protein range,^[7] and that a skilled person would be motivated to use heme-containing proteins to provide a more meat-like colour and nutritional profile.^[8]

Heme is not the only ingredient companies are hoping will convince customers of the “meatiness” of their products. Other products have relied on naturally derived ingredients like beet juice, pomegranate fruit powder, coconut oil and other ingredients to generate a sizzle and “bleed” when cut.^[9] Nevertheless, the plant-based meat market is highly competitive, and heme appears to be an advantage worth fighting over.

Mycelium trade secret dispute: The Better Meat Co. v. Meati

While patents are a common way to protect meat-substitute innovations, a dispute involving other rights arose recently between Meati and The Better Meat Co., two fungi-based meat alternative companies. Meati accuses Better of stealing Meati’s trade secret relating to the use of a thread-like fungus (mycelium) to simulate meat. Mycelium, also known as “mushroom root,” is branching fungi filaments that underlie mushrooms.^[10] While mushroom root is already used in the human diet — in tempeh, for example^[11] — many species and strains exist, and both companies have kept their strain as proprietary information. Meati’s secret was allegedly shared by a former Meati associate who went on to work at Better. Better was later granted a U.S. patent covering fermentation methods for producing mycelium-based meats.^[12]

In response to a December 2021 claim by Better against Meati for tortious interference, Meati alleged trade secret misappropriation and unfair competition against Better.^[13] The litigation is ongoing.^[14]

Canadian patent landscape

While it remains to be seen if Impossible will retain its exclusivity in the heme-based space, there are at least 27 companies that own upwards of 58 pending and issued meat-substitute and meat-alternative protein patents on record in Canada, and there are sure to be more filings as consumer demands incentivize innovations in the field.

Table 1: Canadian meat-substitute patents by company^[15] 

Company	Active Patents
	Granted	Pending
Aleph Farms		2
Avant Meats		3
Beyond Meat	1
Bunge Loders Croklaan B.V.		1
Clara Foods Co.		1
Corbion Biotech, Inc.	2
Ecovative Design		3
Emergy Inc (Meati)		1
Fermentationexperts A/S	1
Glanbia Nutritionals		2
Impossible Foods	1	9
JUST, INC (EAT JUST)		2
Kalamazoo Holdings		1
Luya Foods		1
Marlow Foods		2
Memphis Meats (Upside Foods)		2
Mycotechnology		3
Novameat Tech		1
Ocean Spray Cranberries		1
Redefine Meat		2
Roquette Freres		1
Societe Des Produits Nestle S.A.		9
Solae, LLC	1
Terramino		2
The Fynder Group		2
Unilever Ip Holdings B.V.		4
Valio Oy	1

Looking forward

With increasing public interest in climate-friendly and economic food options, as well as increasing competition, the plant-based meat industry will continue to evolve and grow. Globally, the meat-substitutes market is projected to grow from $5.37 billion in 2021 to $10.8 billion by 2028.^[16] According to the National Research Council of Canada, the market for alternative proteins is expected to grow at 14% annually by 2024, making up to a third of the protein market.^[17] A key market for customers is the omnivore or “flexitarian” (semi-vegetarian) market, which is expected to grow to 10 million Canadians in the next five years.^[18] This growing market is a lucrative one in which consumers are now shaping their views about available products. As the U.S. experience shows, intellectual property disputes arise at just such times.

The Impossible and Meati proceedings underscore the importance of companies having a robust protection strategy and reevaluating their approach to intellectual property protection and due diligence, especially in a fast-growing market. Experienced intellectual property counsel can assist in navigating this complex space, including advising on risks associated with others’ patent rights, pursuing a cost-effective patent procurement and enforcement strategy, and strategies to protect confidentiality of sensitive business practices.

For more information on options to protect your products and methods in the plant-based and meat-substitute market, please do not hesitate to contact a member of our Intellectual Property Group.