A US patent recently granted to Perfect Day, one of the highest-profile startups in the emerging ‘animal-free’ dairy field, has been challenged by an anonymous petitioner.
The request has not yet been published on the US Patent and Trademark Office (USPTO) website, but is available via online tool PatSnap.
There is no formal definition of ‘animal-free’ dairy. But it typically refers to products made with ‘real’ dairy ingredients such as whey and casein proteins that are produced without cows, either by genetically engineered microbes using precision fermentation or by genetically engineered crops.
Using synthetic biology, startups deploy DNA sequences like pieces of computer code to program plants or microbes to express dairy proteins. To date, Perfect Day has commercialized beta-lactoglobulin, a whey protein expressed by a genetically engineered strain of the filamentous fungus Trichoderma reesei instead of cows, but is also working on casein proteins and dairy fats.
Petitioner: ‘Perfect Day patent should never have been issued’
Perfect Day has filed multiple patents since it was founded in 2014. The patent at issue here—granted to Perfect Day in October 2022—relates to dairy substitutes, methods of manufacturing them, and compositions comprising animal-free proteins and fats for products such as milk, butter, cheese, yogurt, and cream.
In a request (dated Jan 20) for an ex parte re-examination of Perfect Day’s US patent 11,457,649 seen by AFN, the petitioner argues that the patent “should never have been issued.”
The petitioner raises multiple objections in the 139-page request, arguing for example that the “only independent claim” in the patent is “obvious,” while prior art presents “substantial new questions of patentability.”
It adds: “The two pillars of the applicant’s [Perfect Day’s] argument, one being the existence of a structural difference between natural beta-lactoglobulin [from a cow] and recombinant beta-lactoglobulin [made by Perfect Day’s microbes], and the second being that this difference causes unpredictability of beta-lactoglobulin functionality, are proven as false.”
The USPTO must decide whether there are grounds to reexamine the patent within three months of the petition filing date.
Perfect Day patent successfully challenged in Australia
Dairy giant Fonterra, which has challenged Perfect Day’s IP in other jurisdictions and is also involved in the animal-free dairy space via a joint venture with DSM, would not say whether or not it had filed the petition in question in the US.
However, the Australian Patent Office (APO) recently ruled in Fonterra’s favor after it opposed a Perfect Day Australian patent covering similar ground. Perfect Day is appealing that decision.
Nicki Briggs, VP corporate communications at Perfect Day, told AFN: “While we are unable to comment on this particular issue, we can share unequivocally that we remain confident in our IP and will continue to vigorously defend it to ensure that we can continue to build a kinder, greener tomorrow.”
Microbes, not cows: Animal-free dairy
Making dairy products without cows offers the best of both worlds, argue animal-free dairy advocates: more sustainable and ethical products that don’t involve industrialized animal agriculture but still deliver the nutrition and functionality of ‘real’ dairy such as melty, stretchy cheese, which is hard to make with plant proteins.
California-based Perfect Day is the most advanced player in the field, producing animal-free whey from multiple sites that supply emerging CPG brands to large CPG companies including Mars (CO2COA) and Nestlé (Cowabunga), which are testing the waters with various products and concepts.
Other animal-free dairy startups include Remilk and Imagindairy in Israel; Change Foods and New Culture in the US; All G Foods in Australia; Formo in Germany; Those Vegan Cowboys in Belgium; Daisy Lab in New Zealand and so-called ‘molecular farming’ players such as Nobell Foods, Pigmentum, IngredientWerks, Mozza, and Miruku. [Disclosure: AgFunder, AFN‘s parent company, is an investor in Nobell Foods.)