In the quest for a more sustainable future, not least of all in response to the pressing issues of climate change and global population growth, innovative agri-technology and foodtech have never been more important.
In that context, Australia is well placed to leverage its capacity for innovation and technology together with its traditional market advantages in food production, to lead the pack. The Protein Roadmap 2022 just unveiled by Australia’s National Science Agency, CSIRO, seeks to lay out a plan for Australia to unlock technology-led growth to do just that.
As the Roadmap notes, by 2050, the Food and Agriculture Organisation estimates a need for 60% more food to feed the global population. Protein is a key building block of the human diet. Australia’s total protein sector is already worth $56 billion annually, and CSIRO puts forward a conservative estimate of the sector’s worth in 2030 as $79 billion. CSIRO’s goal is to add $13 billion in value to that estimate through science and technology driven opportunities in ten key areas, which cover value-adding in existing, mature protein industries such as red meat, further development of plant based protein ingredients and products, and development of more novel opportunities such as insect protein sources for food and feed, use of precision fermentation and cultivated meats. The Roadmap also notes other emerging opportunities for protein derived from various other sources including protein from air, plastic, fungal protein, microalgae protein ingredients and cell cultured milk.
CSIRO’s call to action is timely, given the reported impact of the COVID pandemic on global food security, and in recent weeks, fall out on fertiliser component exports from Russia. Diversification of food sources from the five animals and twelve plants which CSIRO reports currently provide 70% of the world’s food seems overdue.
A key driver of innovation in this sector will be patent protection. As an example, in a patent analytics report on substitute meat issued by IP Australia in 2020, 30 patent families had been filed in Australia in this field, but none were identified as originating here. If Australia is to become a leader in “protein-tech”, Australian innovators should also be leading the pack in terms of originating patented innovation.
One issue which may raise concerns in the foodtech field is the extent to which natural products or naturally-derived materials can be patented at all. Much publicity accompanied the High Court’s determination in D’Arcy v Myriad Genetics Inc  HCA 35 (Myriad) that an isolated nucleic acid sequence encoding the BRCA1 mutant polypeptide was not patentable. However the Myriad decision has subsequently been interpreted narrowly and confined to isolated nucleic acid sequences. In Meat & Livestock Australia Ltd v Cargill, Inc  FCA 51 (Meat & Livestock), the Federal Court considered the patentability of a claimed invention of a method of identifying bovine traits from a nucleic acid sample. The method effectively correlated a genetic marker with a particular trait, to assist in breeding activities. The Federal Court rejected the argument, analogous with Myriad, that the claim simply discerned the existence of a trait from the information in the nucleic acid sample. The claims were not directed to the markers present in the nucleic acid samples or their association with certain traits per se. Rather, they involved a practical method of taking a sample to be used for a practical purpose. Ultimately the judge found that the invention was within the “plain vanilla concept” of patentability. Interestingly this conclusion also extended to a claim for a cloned cow resulting from an associated cloning method.
Insofar as genetic science is involved in protein technology, there are therefore likely to be ways to patent new inventions. More generally, Meat & Livestock indicates that methods that lead to economically useful products or results may have good prospects of being patentable. Of course, development of new foods, through methods that involve human intervention such as genetic engineering, cell culture or fermentation will likely be on even safer patenting ground.
Given the prospects of successfully patenting innovative new technology in foodtech, it is to be hoped that innovators will take up this opportunity to protect their investment in research and development, and that this will stimulate growth and innovation in the sector. With that in mind, one measure of success of CSIRO’s Roadmap might be the changing landscape of patents in the foodtech space, and the extent to which patents in Australia, and worldwide, reflect greater Australian activity in the field.