Wrigley Loses Bid to Revoke Multi-Flavour Candy Patent
A recent decision from the European Patent Office (EPO) offers important guidance on European patent inventive step confectionery patents and the evidential burden in opposition proceedings. A subsidiary of Mars, Inc., owner of the Wrigley and Life Savers brands, sought to invalidate a competitor's European patent covering a two-layered candy designed to create a "multi-flavour experience."
However, the EPO rejected the opposition, concluding that Wrigley's earlier gummy products did not render the rival's invention obvious.
The ruling reinforces the technical rigour of the EPO's problem-solution approach and provides practical lessons for brand owners and patent challengers alike.
The Patent Dispute: Multi-Flavour Experience
The contested patent protects a confectionery product comprising two distinct layers, structured to deliver sequential or combined flavour release.
Wrigley argued that its own gummies, sold for approximately 16 years, already offered multi-flavoured characteristics. In its view, the patented concept lacked an inventive step and should therefore be revoked.
The Opposition Division disagreed. While earlier products may have included multiple flavours, the EPO found they did not disclose or anticipate the specific two-layer structural solution claimed in the patent. As a result, the prior art did not make the invention obvious to the notional "skilled person."
The rival patent therefore survived the opposition intact.
European Patent Inventive Step Confectionery Patent Approach
The decision illustrates how the EPO assesses European patent inventive step confectionery patents using its structured methodology:
1. Identify the closest prior art.
2. Determine the objective technical problem.
3. Assess whether the claimed solution would have been obvious.
Importantly, the analysis focuses on technical features, not merely commercial similarities.
In this case, although Wrigley's earlier gummies may have delivered more than one flavour, they did not disclose the claimed layer architecture or demonstrate how such a structure would achieve controlled flavour sequencing.
The EPO was not persuaded that a skilled confectionery technologist would have been motivated to arrive at the patented configuration with a reasonable expectation of success.
Key Takeaways for Patent Strategy in FMCG
This ruling carries broader implications beyond confectionery. For businesses operating in fast-moving consumer goods markets, the case highlights several strategic considerations:
1. Technical specificity strengthens patents
Patent claims grounded in clear structural or process-based features are more defensible than broad conceptual ideas.
2. Long-standing products are not automatically invalidating
Even if a competing product has existed for many years, it will only destroy novelty or inventive step if it clearly discloses the patented technical solution.
3. Opposition proceedings require technical precision
Successfully revoking a European patent demands more than identifying a similar commercial product. Opponents must establish a clear technical pathway from the prior art to the claimed invention.
4. Incremental innovation can still qualify
The EPO continues to recognise that incremental but technically distinct developments may satisfy the inventive step patent requirement.
Tidman Legal Comment
For global brand owners such as Mars and Wrigley, intellectual property protection extends well beyond trade marks. While brands like Life Savers derive substantial value from brand recognition, patent protection for formulation and product structure can offer a powerful additional competitive advantage.
This decision demonstrates that the EPO maintains a high and structured threshold for invalidating patents. Multi-flavour or sensory-based innovations can be patentable when supported by clear technical differentiation. Additionally, early patent landscaping and freedom-to-operate analysis are essential in crowded markets. As competition intensifies across consumer sectors, we expect EPO opposition proceedings to remain a key strategic battleground.
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