The increasing availability of data provides opportunities for better decision making in the food manufacturing industry, playing a key role in minimising waste, supply chain costs and inefficiencies in the production process, as well as forming the basis behind many new products and technical advancements.
Businesses in the sector (and beyond) are therefore seeking to capitalise on the boom in the ‘data economy’, with so-called ‘Big Data’ leading to, and being intrinsic in, innovations in food production.
Data-driven innovations are offering companies an all-important competitive advantage, with intellectual property rights being central to maximising the value of the investment made.
This article explores the availability and role of IP in protecting data-driven innovations to be used by your business – and the importance of developing an IP strategy to help achieve your commercial objectives.
What is Big Data?
In essence, Big Data (a term in fact coined in the early 1990s) refers to datasets which are too large or too complex to be handled by traditional data-processing software. In other words, they rely on advanced software technology to be processed. Big Data can be used at all stages of the supply chain, from sourcing raw materials, predicting life spans of products, to packaging end-products. By analysing Big Data, trends and patterns can be identified, presenting opportunities and possible solutions for products and business generally.
Yet Big Data also plays a secondary role: the ability to efficiently extract data helps to satisfy the increasing reporting requirements imposed by governments, with the goal of reducing food waste.
Big Data and Artificial Intelligence (AI) are increasingly working hand-in-hand, AI requiring a large volume of data to learn and improve decision-making processes. An example of data and AI being used in the industry is in respect of automated quality inspections.
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The development of powerful software and tools is therefore becoming critical to handling the increasing demand for, and size of, data within the food manufacturing industry. In turn, the ability to obtain IP rights incentivises and rewards innovation in the field.
Protecting your data-driven innovations
At a basic level, IP rights allow you to make money from your innovations, by preventing others using the same or from copying your innovations for a specific period of time without your consent. Different aspects of your innovations can be protected by different rights (and some elements by multiple rights).
Generally speaking, ‘raw’ data cannot be protected by IP rights, with it neither being technical nor creative in nature. The ability for one business or person to monopolise or obtain exclusivity in relation to such data would be problematic for the wider sector.
However, IP is available to protect data-driven technology and the software used to process Big Data. In addition, undisclosed, commercially valuable data can also fall under the broad heading of confidential information, which may further meet the criteria of a trade secret, if reasonable steps are taken to safeguard the information’s secrecy. This can provide a potentially indefinite form of protection (take the Coca-Cola recipe as a famous example in the food and beverage sector).
Although not patentable in itself, data is fundamental to obtaining patent protection. Patents are powerful tools in providing owners with a 20-year monopoly to the claimed innovation, preventing others from commercialising products or methods which fall within its scope in the territory. Patents can afford companies an all-important first mover advantage, enabling them to reap the rewards from the research and development undertaken to commercialise that product or process.
Not all subject matter is patentable, with the availability of patent protection for software traditionally being limited. However, there has been an overall shift towards patentability of computer software over the past 10-15 years. Courts have confirmed that patents may be granted for software that provides a “technical solution” to a “technical problem”. By way of example, computer software which implements a novel method of processing data (e.g. data concerning crop conditions) may be deemed sufficiently “technical”, with the associated data having valuable applications across various products.
Even where the innovation does not meet the patentability requirements, all is not lost -trade secrets, when properly implemented, can provide all-important commercial protection, particularly before the product is launched to the public. They can also play a complementary role alongside obtaining patent protection, given that patentable innovations must be kept secret until the patent application is published.
Note that information/data which demonstrates that something does not work (e.g. which highlights inefficiencies in the manufacturing process) can also comprise a trade secret. However, if the underlying trade secret can be revealed by analysing the method or product (e.g. breaking down the components of the food product), it may lose protection. If and when the information is no longer considered commercially valuable (e.g. because it has been superseded by more advanced technology), it can simply be made available to the public.
Other IP rights are available to protect different aspects of data-driven innovations:
- Copyright automatically subsists in, for example, source code underlying new software solutions and written analysis of data, providing a lengthy duration of protection.
- Database rights also exist in the UK and EU to protect collections of data, provided sufficient investment is made in obtaining, verifying and presenting that data. It is worth noting, however, that where the process of obtaining, verifying and presenting data becomes automated (e.g. through use of an algorithm), such protection may not be available.
- Design rights can protect the functional and aesthetic aspects of data-driven products.
Maximising revenue through agreements and licensing arrangements
Once you have obtained IP (whether automatically or through registration), maintaining that protection, and seeking to maximise revenue from it through licensing, should be considered. IP rights can also be purchased like any other asset.
Moreover, if you are collaborating with a third party to develop new ideas and technology, steps should be taken to protect your rights to IP which may arise from or during the project.
The importance of a well-drafted agreement should not be underestimated, providing you with comfort and certainty that you have all the rights you need to commercialise your innovations and can benefit from it going forward.
You may also wish, or be asked, to share valuable data with third parties in the supply chain or with a prospective collaborator. To the extent that such data has not already been disclosed to the public, robust terms of confidentiality should be put in place. This is particularly important for undisclosed data which may be used in support of a future patent application. However, it should generally be prioritised in any situation where that information may give you a competitive advantage, such as data which evidences the benefits of using particular processes or crop varieties. Note that any mandatory disclosures of data to regulatory bodies or authorities will not ordinarily impact the ability for such information to be classified as confidential or as a trade secret.
Lastly, where the data comprises personal data relating to individual consumers, compliance with data protection legislation is critical. If personal data is then being shared with a third party, data protection terms must be entered into to protect the interests of the data subjects.
The importance of a tailor-made IP strategy
The opportunities presented by the use of data in the food manufacturing industry will continue to lead to new innovations, many of which can be protected by a suite of complimentary IP rights. Having contractual safeguards in place when collaborating or sharing ideas is critical to obtaining and maintaining such protection. Licensing is also an attractive prospect for many businesses in order to provide a future revenue stream.
IP strategies, however, should be tailored to each innovation, your commercial objectives and budget. There is certainly no ‘one size fits all’ approach and specialist advice should be sought in relation to the availability of IP protection and the drafting of IP-centric agreements.