An interesting patent case was recently filed by the company that makes “Impossible Burgers” which are plant-based food products made by Impossible Foods. See BloombergLaw media report here. As reported, the key ingredient is something called a “heme” which, for Impossible Foods, is a soy leghemoglobin molecule found naturally in plants and animals and is what makes meat taste like meat. Impossible Foods invented a method of producing hemes from soy plants using genetically engineered yeast. Impossible Foods obtained a patent. See here.

The media article calls this a “tastes-like-meat” patent. This raises the question of whether taste and flavor can be patented and whether the “heme” molecule can be patented. Impossible Foods is now suing a competitor — Motif FoodWorks — for patent infringement.

Since at least 1980, there is no question that patents can be issued and protected for manufactured organisms. See Diamond v. Chakrabarty, 447 US 303 (US Supreme Court 1980). That case involved a patent application for producing genetically engineered bacterium that was designed to break down crude oil. This was deemed potentially commercially valuable as a method for the treatment and cleanup of oil spills. In that case, the inventor sought a patent for the process of producing the bacteria, for a carrier method of delivering the bacteria and for the bacteria itself. Importantly, neither of the first two presented a problem of patentability. It was the third issue that presented a legal question. In the end, the US Supreme Court held that, as a designed and essentially man-made organism, the bacteria in question was a patentable subject matter under US patent laws. See 35 U. S. C. § 101.

Further, there is also no question that molecules that impart flavor can be patented as long as they meet the other requirements of patentability (like novelty and non-obviousness). See an example here for a “tastes-like-toasted-corn” patent.

Like the patent at issue in Chakrabarty, the Impossible Foods patent contains a clear set of claims related to its process of generating the heme molecule and then applying it to food processing in various ways. Such processes are clearly patentable. Manufacturing processes are common subjects for utility-type patents. However, it is unclear whether Motif FoodWorks is using the same or similar processes. From this separate media report, from public announcements made by each company, it seems that Impossible Foods is obtaining its heme from nitrogen-fixing nodules on plants like soy plants. By contrast, Motif seems to be obtaining its heme — branded as HEMANI — from the muscle tissue of cows. However, these are, of course, public pronouncements. It will be interesting to hear about the proofs provided in court.

With respect to the heme molecule itself, one question is whether it is a naturally occurring substance. In general, patents cannot be issued for naturally occurring organisms absent some involvement, cultivation or intervention by human action. A plant patent, for example, cannot be issued for a plant species found in the wild. However, a plant patent CAN be issued for a plant found in a cultivated area. As noted above, “heme” is a naturally occurring molecule. But the specific “heme” used by Impossible Foods might well have been hybridized or modified to be different from the one that occurs naturally in nature. The same may be true for the “heme” being used by Motif FoodWorks.

It will be interesting to watch the case progress.

Contact Revision Legal For more information or if you have an invention that you want to patent, contact the patent lawyers at Revision Legal at 231-714-0100.

Patentability Requirements for Biological Innovations

The Impossible Foods case sits at the intersection of several complex patent law doctrines governing biological inventions. Following Diamond v. Chakrabarty, the threshold question for patenting biological matter is whether the claimed invention is a product of human ingenuity and research—a product of nature is not patentable, but a genetically modified or recombinantly produced organism with markedly different characteristics from any found in nature can be. Subsequent Supreme Court decisions have further refined this doctrine.

In Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013), the Court held that naturally occurring DNA segments are products of nature and are not patent-eligible, even if they have been isolated from the surrounding genetic material. However, the Court simultaneously held that complementary DNA (cDNA)—which is synthesized from messenger RNA and does not occur naturally—is patent-eligible. This distinction between naturally occurring biological matter and synthetic or modified biological matter is central to the patentability of Impossible Foods’ heme production process.

Process Patents, Product Patents, and What Impossible Foods Actually Owns

The Impossible Foods patent portfolio illustrates the layered nature of patent protection for food technology innovations. Patent claims can protect: (1) the process of producing a compound or organism; (2) the compound or organism itself if it is non-natural; and (3) the application of the compound or organism in a specific product or method. Impossible Foods has sought and obtained patent protection across multiple claim types.

U.S. Patent No. 10,863,761, central to the Motif FoodWorks litigation, contains claims covering both the process of producing heme using recombinantly produced yeast and the use of heme in food compositions to create a meat-like taste. Process patents are typically easier to obtain because they are more clearly the product of human ingenuity, while product patents covering compounds that exist in some form in nature require careful claim drafting to distinguish the claimed invention from the naturally occurring substance.

The Scope of Patent Claims in Biotech: Enablement and Written Description

In addition to the patent-eligibility requirements discussed above, biotech patents face heightened scrutiny under the enablement requirement of 35 U.S.C. § 112. Under Amgen Inc. v. Sanofi, 598 U.S. 594 (2023), the Supreme Court held that a patent claiming a broad genus of antibodies must enable the full scope of the claimed genus—not merely instruct a skilled scientist how to produce a few specific examples and then ‘do the rest.’ This case has significant implications for biotech patents that claim broad categories of biological compounds or organisms.

For Impossible Foods and similar food technology innovators, ensuring that patent claims are adequately enabled and supported by a sufficient written description is critical to long-term patent protection. Claims that are overly broad may be invalidated in litigation, leaving competitors free to produce similar products using slightly different processes or formulations that fall outside the narrowed claim scope.

Defensive Patenting and Freedom to Operate in the Alternative Protein Space

The Impossible Foods v. Motif FoodWorks litigation reflects a broader competitive dynamic in the alternative protein industry, where first movers with patent portfolios are using IP enforcement to protect market position as new entrants emerge. Companies developing plant-based or cell-based protein products must conduct thorough freedom-to-operate (FTO) analyses before commercializing their products. An FTO analysis examines all in-force patents in the relevant technology space and assesses whether the proposed product or process would infringe any existing claims.

Failure to conduct an adequate FTO analysis—and to obtain opinions of counsel where significant patent risk is identified—can expose a company to enhanced damages for willful infringement under 35 U.S.C. § 284. The Supreme Court in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93 (2016), held that willfulness can be found when a defendant engages in ‘egregious’ infringement behavior, such as proceeding in the face of a known, specific risk of infringement.

Patenting Food and Flavor Innovations: Opportunities for Entrepreneurs

The Impossible Foods case is a reminder that food science innovations can be aggressively patent-protected. Entrepreneurs and companies developing novel food products, ingredients, or processing methods should consult with patent counsel early in the development process to identify patentable subject matter and to establish a filing timeline that maximizes protection. The 12-month grace period under 35 U.S.C. § 102(b) permits filing within one year of a public disclosure, but earlier filing typically provides stronger protection.

The patent attorneys at Revision Legal have experience advising clients in emerging technology sectors, including food technology, biotechnology, and agricultural innovation. If you have developed a novel food product, ingredient, or process, contact us today to discuss your patent protection strategy.