For as long as people have been drinking coffee and tea, they have been developing new blends. Even in an age of renewed interest in single origins and specialty products, there will always be new brews balancing the strengths and weaknesses of different varieties. Indeed, for many aspiring tea and coffee brands, blends offer an accessible entrance into the market to produce distinctive and popular signature products without having to develop growing and processing capacity.

However, this low barrier to entry also applies to your competitors, who can reverse-engineer your blend and sell a knock-off product. Far worse, they can sidestep the lengthy process of developing the blend, and the considerable pain of tasting sub-par blends, by simply imitating a proven product. Whilst imitation may be the sincerest form of flattery, blend-masters need to think about protecting their precious blends from imitators. One way to stop the “copycats” in their tracks is to build a robust IP (intellectual property) portfolio around the core of the business.

The strongest form of IP protection available is afforded by patents. After filing, these provide a monopoly that prevents competitors offering the same and similar products. However, these are not always well-suited for protecting tea and coffee blends. Firstly, the barriers to patentability require that the invention is both new and non-obvious in a surprising or unexpected way. For many blends of coffee or tea, combining known origins or varieties is unlikely to meet this standard. Additionally, applying for a patent involves disclosing how the invention can be put into practice, effectively meaning that to the extent the patent isn’t enforceable, the recipe is now in the public domain. Finally, obtaining patent protection is a slow and costly process, easily running into the tens of thousands of dollars/euros/pounds and taking three to five years. This is not always suited to fast-moving development schedules for consumer goods. Whilst there may be some use-cases, for instance, concerning new processing steps, artificial flavourings, or ways of determining bean qualities, these rights will generally form a small part of the IP portfolio for a blender.

Although patent protection is challenging, there are other avenues available to protect the recipe for a proprietary blend. Chief amongst them, trade secrets are practical, and legally enforceable, rights that can be very powerful for protecting recipes. After all, the archetypical trade secrets are the Coca Cola “secret formula,” and “Colonel Sanders’ 11 Herbs and Spices.”

In the world of coffee and tea, there is a clear parallel, where the sources and amounts of various origins produce the signature flavour yet are difficult (if not impossible) to reverse-engineer from the product on the shelf. To benefit from trade secret protection, it is necessary to take steps to identify the underlying information and actively keep it secret. However, if this can be achieved, a monopoly over your blend can be maintained indefinitely.

The “secret recipe” strategy

In the world of food and drink, trade secrets can also be an effective marketing tool independent of the qualities they impart on the products. A large part of the value of the “secret recipe” lies in the mystique – the idea that there is something special, heritage, or unique about the blend – and canny blenders will trade on this part of their brand story.

Of course, when thinking about tea and coffee brands, the first form of IP that comes to mind is trademark protection. Relatively cheap, robust to enforce, and potentially indefinite in scope, no IP portfolio around a blend can afford to go without at least one, if not several, trademarks around the name, logos, and trade dress of the product.

There are some drawbacks to this approach, chiefly that the recipe itself cannot be trademarked. Whereas patents and trade secrets might prevent third parties replicating your blend, trademarks serve to identify those who do as cheap imitators.

However, clever use of trademark protection can provide even broader protection around the reputation and goodwill in the brand, marking you out as the originator in a sea of cheap imitators. For example, Earl Grey is such a powerful and evocative blend that customers would know to expect something similar from a blend called “Earl’s Delight” or “Imperial Grey.” In contrast, they probably would not expect to taste bergamot and citrus in “Campfire Noir” or “Jaipur Breakfast.” Strong and evocative marks can cast a broad shadow in a similar way, invoking your branding in the minds of customers even when they buy products from competitors. Trademark holders can also assert their rights against confusingly similar marks, providing a legal remedy against attempts to ride the coattails of a brand.

Developing a new blend of coffee or tea that tastes great involves balancing the strengths of different estates and origins to produce something greater than the sum of its parts. Much like the products themselves, it is a blend of hard and soft IP rights, providing overlapping layers of protection around aspects of the product, packaging, and branding, which will help secure and maintain a place on the shelves. Taking a holistic approach, integrating IP capture and strategy into the brand and product development, is the secret recipe for success.

• Andrew Tindall is a patent attorney at Potter Clarkson, a London-based IP firm. His expertise lies in helping innovators develop and execute their patent strategy across a broad range of biotechnologies. Tindall has a special interest in the technologies shaping the futures of food and agricultural sciences, combining his background in plant sciences with a passion for smallholding, but works across technical areas including antibody therapeutics, digital health, and precision oncology.

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Coffee consumption has doubled over 30 years and continues to rise. Based on current projections, production needs to grow by 25 percent by 2030 in order to satisfy demand, whilst farmers in producing countries are increasingly unable to meet this by simply expanding acreage as competition for land-use intensifies.

Yet coffee remains under threat. Both Arabica and Robusta are particular about growing conditions, with each species growing only in a ”goldilocks zone” of temperature and rainfall. Consequently, coffee is sensitive to changes in conditions. With anthropogenic climate change now unavoidable, even moderate effects could have devastating impacts on many of the world’s current coffee plantations. Further complicating matters, climatic effects could further increase pressure on coffee plants by influencing the range of and damage cause by pests and pathogens including coffee berry borer and leaf rust.

Addressing these challenges requires extensive R&D – USD $452 million per year of it. But there is a potentially lucrative opportunity for innovative farmers, plantation operators, plant breeders, and biotechnologists who can provide solutions. The viability of these undertakings depends on the ability to secure a return on this investment for innovators and their investors. Much of this directly results from the strength of the solutions offered. Viable products must address the priorities of consumers (lower price and lower environmental impact, without compromise on quality or variety) and the needs of producers (climate resilience, pest immunity, and reliable yields). Equally important for securing a competitive edge is ensuring exclusivity around this advantage, to prevent “free riding” third parties undercutting the innovation.

Innovators will need to blend their technical, agricultural, and legal strategies to secure a lucrative market position, but the rewards for doing so will be substantial.

Good breeding

Breeding drought or pest resistance into coffee is an attractive prospect — as resistance is in effect always active, there is no need for the expensive and time-consuming application of applying protective agents at the right time. This also means that the advantages of resistant varieties can be felt by even small-scale producers who lack the access to capital required to invest in pesticides.

However, coffee breeding poses significant challenges. Traits can be introduced into plants by selecting natural mutations, but this is a lengthy and undirected process. Breeding is much more straightforward for traits already present in the gene pool, but unfortunately the Arabica gene pool in particular lacks this necessary diversity.

Wild coffee relatives could be a key tool in identifying and engineering improved coffee strains. There is significant early interest in harnessing the drought-resistance of Coffea liberica, Coffea racemosa, and Coffea stenophylla, and introducing these traits into high-value Arabica land races to produce new hybrid varieties that combine the hardiness of the wild relatives with the flavour profile and processability of elite Arabicas. Furthermore, many of these species grow in regions where common pests and disease are endemic, to which they have acquired immunity, and could also introduce these traits to the breeding pool.

Protecting innovation in plant breeding can be especially challenging. Whilst patent protection is often seen by investors as the gold standard of Intellectual Property (IP) rights, in many countries, plants as such produced through conventional breeding are exempt from patentability. Canny innovators can work around this carve-out to nevertheless create a valuable area of exclusivity. For example, methods and markers used to select for resistance traits, or cell-culture based breeding approaches, might be subject to valuable patent rights. These can be combined with plant variety rights (PVR), which prevent third parties from propagating specific protected varieties, to create a “double lock” for competitors attempting to engineer their own versions of the new strains.

Advances in gene editing

Although traditional breeding programmes can be lengthy, involving extensive crossing and selection between strains across multiple generations, this can be accelerated through precision genome editing technology. Unlike traditional transgenic techniques, where foreign DNA is inserted wholesale into the genome and are strictly regulated as genetically modified, gene editing uses precision tools to effectively ‘rewrite’ the plant’s native genetic code, changing the underlying genes and the traits they encode.

Advantageously, gene-edited crops have a favourable regulatory framework and are in certain circumstances treated the same as conventional plants in producer countries including Colombia and Brazil, as well as key consumer countries like the US, with the EU in the process of passing similar legislation in the near future. This is vital for consumer acceptance in markets where GMO remains a dirty word.

Long-term, gene editing may even allow coffee breeders to incorporate increasingly exotic traits into their beans. Characteristics such as caffeine content, levels of chlorogenic acids, aromatic profile, cherry ripening time, and bean size could all be manipulated to provide coffee that outperforms current varieties not only in yield but in quality and ease of processing, and which can demand higher prices as speciality products.

The future of crop protection

Given the need to increase yields by 2030, and the fact that even once new coffee varieties become available it will take three to four years for them to crop, there remains a need for new crop protection and enhancement products, at least in the interim.

Whilst chemical control agents are a core part of coffee farming, public opinion in the EU and the US is turning against their use. One alternative might be to harness the bacteria and fungi naturally associated with coffee plants. Much like in the human gut, a network of microbial species forms a symbiotic association with coffee plants, promoting growth and providing defence against pathogenic microbes. If these microorganisms could be isolated, they might provide effective live foliar sprays, or provide new antimicrobial compounds for development as agrichemicals.

This provides an opportunity for farmers as well as biotechnologists. The identification of beneficial microbes will require sampling from many farms around the world. Farmers who can negotiate royalties in exchange for these samples may find that mining microbial resources becomes a valuable income stream alongside selling raw beans.

Surveillance and enforcement

One of the biggest challenges for tech- and IP-heavy agribusiness is identifying infringement. Farms necessarily involve a loss of control over IP assets and, in many cases, it is simple to propagate plants or save seed to undercut the innovators. Finished products also undergo processing which make identifying traits challenging. This is even more acute in coffee, where the highly fragmented landscape of small producers across multiple countries, combined with the blending of products from multiple farms during the supply chain, means that, even when infringing products are identified, it is often impossible to determine which producer is at fault.

Technologies such as DNA fingerprinting might hold the answer. By identifying characteristic, detectable patterns in the genetic code of coffee beans from a particular strain, it is possible to identify whether beans from protected strains are present in a batch. Currently, this technology is limited by the ability to extract DNA from coffee in a high-throughput manner, but if this bottleneck could be overcome – for example, through cold-water extraction – then fingerprinting could not only be valuable for innovators seeking to identify infringers of their own IP but could provide a lucrative revenue stream if licensed out to third parties to aid in their sleuthing.

Indeed, fingerprinting might also be a valuable platform for tracing origin in the existing speciality coffee sector, with different markers than for the commodity market used to trace varieties and catch knock-offs.

Urgency of decision-making now

Production-side innovation in coffee has been sluggish and remains underinvested. However, as with vineyards in the late 20th century, embracing technology has the potential to improve yields, profits, and conditions for producers whilst maintaining quality.

Coffee’s status as the world’s beverage of choice seems, for now, unassailable, as its popularity only continues to grow. A lot of this success is built on the back of low prices and near-ubiquitous availability. This will be necessary for the world’s favourite drink to service ever-increasing demand in the face of challenges from climate shocks, land competition, or emergent disease and pests. Despite the early stage of development, decisions made now about how to protect, promote, position, and exploit this work will have long-lasting consequences on the landscape of coffee production for decades to come.

• Andrew Tindall is a patent attorney at Potter Clarkson, a London-based a firm that specialises in advising clients on food technologies.

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