This month, the UK government introduced an extension of the ban on single-use plastics to include polystyrene foods and drinks containers. In the two years since our last article series on targeting plastic waste, a lot has changed both in terms of legislation and the development of plastic-free alternatives. In this article we consider how effective these changes have been in tackling plastic packaging waste, key areas of innovation, and how innovators can protect the new materials and processes that are being developed.

The current landscape

In 2021, packaging was the largest application in the world plastics market. In a bid to tackle this and reduce the use of virgin plastics, the UK government has implemented new legislation that will give UK organisations that import or supply packaging extended producer responsibility (EPR). This requires producers to pay the full cost of dealing with the waste they produce, with businesses needing to collect data on how the packaging is used and ensure packaging is recycled where possible. This legislation is an environmental policy which follows the introduction of the plastic packaging tax in 2022 on the manufacture or importation of plastic packaging components that contain less than 30% recycled plastic.

The UK government has also launched a range of funding schemes to incentivise development into sustainable plastic packaging, such as grant schemes from the UK Research and Innovation’s Engineering and Physical Sciences Research Council and Biotechnology and Biological Sciences Research Council. On top of this, the UK government recently announced a further £3.2 million investment in the UKRI’s Smart Sustainable Plastic Packaging (SSPP) challenge. With a budget of £60 million for spending from 2019 to 2025, the SSPP has received the largest investment in sustainable packaging initiatives to date. Interestingly, nearly 50% of this funding is directed at mechanical recycling projects, with 30% of the funding being split between refill/re-use, chemical recycling schemes and prevention and reduction projects.

Governmental drive has been reinforced by consumers with 8 in 10 consumers in the UK supporting a ban on single-use plastics. A recent report from Trivium Packaging and Euromonitor International showed that of nearly 10,000 respondents, 82% of respondents would be willing to pay more for sustainable packaging, while 63% of consumers are now less likely to buy products with environmentally harmful packaging.

These regulatory, financial, and consumer-backed incentives seem to be working. Since 2006, recycling and energy recovery have overtaken landfill as the largest waste treatment options.

Figure 1 post-consumer plastics packaging waste treatment evolution (in kt). Plastics Europe Oct 2022

To support a sustainable circular economy for plastics, innovation is required at every stage of the plastics lifecycle. Consumer brands are tackling this in different ways, including:

• Reducing plastic packaging: Reducing the amount of plastic needed for packaging by vacuum packing products such as meat, rice and sweets. Cheese brand Cathedral City® has reduced plastic content by 6% by introducing side opening, resealable packs.
• Using alternative materials: Brands are turning to biodegradable materials and plastic alternatives such as the paper-based packaging used by Pot Noodle® and Gousto™’s use of edible stock sachets made by Xampla®. Coca-Cola® has recently announced research into using electric charges to convert captured-carbon into ethylene, a key ingredient for their bottle tops.
• Improving recyclability: Plastic dyes inhibit recyclability, so supermarkets such as Waitrose are replacing coloured milk bottle caps with clear caps. While other brands, such as Actimel®, have removed plastic sleeves from their products to aid the recycling process.

Innovation and patent filing trends

Innovation in plastic technology has more than tripled since 2015. A recent report by GovGrant reveals that the number of patents related to plastic alternatives that were filed globally in 2021 was 1.84k compared to 605 in 2015. This has likely been encouraged by a combination of legislative changes, policy initiatives and new grants discussed above, as well as patent-based incentives like the Green Channel which offers an accelerated patent application process for inventions with environmental benefit.

A study by the European Patent Office shows that the US and Europe are the leading global innovators driving efforts to make the plastics industry circular, responsible for two thirds of the international patent filings related to the circular plastics industry between 2010 and 2019. Innovation in this area typically falls within three categories:

• Improvements in plastic composition including biodegradable compositions made from biopolymers, and alternative materials made from recycled plastic.
• Improvements in plastic recycling including novel processes and machinery to recover, separate and recycle plastic waste.
• Development of plastics products such as bottles and containers including improved recyclable plastic products.

New plastic compositions show promise for enhancing circularity and reducing carbon emissions by providing a potential alternative to fossil-based or non-biodegradable plastics. Such alternative plastics encompass bio-based, biodegradable and/or compostable plastics, as well as plastics designed for easier recycling. There are several UK companies driving this innovation forwards. Notpla® is a London-based start-up that has received support from the SSPP and won the Earthshot Prize in 2022. They produce an innovative non-chemically modified seaweed-derived plastic coating, used to make card and paper grease-proof and water-resistant. The coating has been shown to completely degrade in home composting conditions in under 6 weeks.

Notpla have filed patent applications to cover the coated packaging items, as well as their Ooho® technology, a seaweed bubble used to encapsulate a liquid. Ooho found fame by reducing bottle dumping on the London streets during the 2019 marathon when it was paired with Lucozade to replace single-use plastic cups and bottles.

UK-based companies pushing developments in plastic recycling and re-use include Circular11, Mura Technology and CircuPlast. Mura Technology’s subsidiary ReNew ELP opened the world’s first HydroPRS™ site in 2023. HydroPRS™ is an advanced plastic recycling system that can convert any plastic into the shorter chain hydrocarbons, or “bio-oils”, that are the basis for new plastics and other products. The process works by mixing plastic with water at supercritical conditions prior to passing through the HyrdroPRS™ reactors. Finally, the mixture is depressurized and the products are separated then stored until required by manufacturers. This emerging plastic-to-monomer technology seems to be causing a stir in the plastics recycling world, with third party observations being filed against Mura Technology’s patent applications covering this process. It will be interesting to see whether this becomes a particularly contentious field.

The recovery and preparation of plastic waste is an obvious prerequisite to its recycling, with the sorting and separating step being the most innovation-intensive, as revealed by the high, fast-growing number of related patent filings in this area. Thus, other areas of development include identifying and sorting plastics in a waste stream, as well as separating different components of plastic articles. Digital passports and software also support the circular economy, for example, by providing information about the life of a given piece of packaging. Rolling out re-use and recycling systems is not easy owing to challenges with tracking potential contaminants (such as allergens) that a piece of packaging may have come into contact with, or determining where packaging ends up when it is no longer required. These challenges need to be addressed so as to help businesses make the most of waste recovery systems as well as meeting the government’s extended producer responsibility targets.

How to protect new materials and methods

The growing number of patents granted by the EPO in this area is encouraging. That said, there can be challenges when it comes to protecting new plastic compositions and recycling or waste recovery methods.

One such challenge is in the terminology used to define new materials.  For example, the umbrella term bioplastics is generally used to describe different materials and might be deemed to be particularly broad leaving any claim containing this term open to a clarity objection under Article 84 EPC or unable to adequately distinguish the new material over the prior art. Terms often (wrongly) used as equivalent to bioplastic, such as bio-based, biodegradable and compostable, have their own issues in terms of clearly defining the scope of the invention. It may therefore be challenging to define and claim general classes of new bioplastic materials, and more specific details of e.g. their functional properties or parameters may be required. However, when claiming a material using a parameter when the particular value of the parameter distinguishes the invention, the EPC Guidelines currently require that a method for measuring the parameter must appear completely in the claim itself for that parameter to be clear. Therefore, as discussed in our previous briefing note, any parameter used to define the invention should be accompanied by a measurement method, where the measurement method should have sufficient detail to unambiguously define that parameter and be drafted in such a way that it can be readily incorporated into a claim without risking further objections in Europe.

Further challenges exist in patenting ‘new’ plastic compositions which may only be new because they are synthesised in a sustainable manner. For example, bio-PET (polyethylene terephthalate) is made from the monomers terephthalic acid (TPA) and monoethylene glycol (MEG), where the monoethylene glycol has been derived from sugar cane. It may be difficult to obtain protection for the product per se which is a well-known polymer. Alternatively, protection might be sought in the form of a product-by-process claim if it can be demonstrated that the process of making the bio-PET from sugar cane-derived MEG leaves a unique fingerprint on the product compared to standard manufacturing processes for fossil-based PET such that the fingerprint can be used to determine whether the claimed process was used. However, even if novelty is established, an inventive step could be difficult to demonstrate. Therefore, consideration needs to be given as to the inventive contribution to ensure that the application focuses on that aspect, or at least provides sufficient disclosure to enable the application to be focused onto this aspect during examination as required. For example, protection might alternatively be obtained for the process of production of the bio-PET composition or a component part thereof (such as the process of synthesising the MEG).

When it comes to the identification, sorting and separating that are needed to cope with the diversity of plastic waste and to route each type of waste to the appropriate recycling method, a lot of the innovation lies in new software. For example, the Reath software platform reuse.ID creates a standardised digital passport for each item so that the software can track the life cycle of reusable packaging. Copyright can of course be relied upon to protect software as a work of authorship, but it may also be possible to obtain patent protection for software-related inventions. It is a common misconception that software cannot be patented, perhaps stemming from Article 52(2) EPC and the exclusion of programs for computers “as such”. However, where there is innovation in this technology resulting in clear technical advantages, and the specific steps of data processing and the interaction between components implemented using conventional hardware and software are fully explained in detail in the patent specification, patent protection may be obtained. Design rights might also be useful to secure protection for the appearance of any graphical user interface elements, which can often form a major part of a company’s brand identity.

Technical solutions to the plastics packaging problem are likely to qualify for patent protection. Whilst developments which are not eligible for patent protection, such as improvements in the appearance of the packaging, may be better protected with a design or trademark filing.  An effective IP strategy would therefore encompass not only patent and design rights, but also cover securing protection for individual brand elements (including the trading name, and logos of the company, as well as those of any key product and services).  Product packaging plays a key role in marketing and with consumers taking an interest in the impact of the packaging on the environment, brands can use this opportunity to tell customers what they believe in and demonstrate their contribution to the circular economy.

The path to a more sustainable future for plastic-reliant industries is one that requires input not only from legislation and regulation, but also from innovation and collaboration. Innovation in alternative plastics and plastics recycling is expanding and driving the transition to a fully circular model. New technologies will help accelerate the reduction in plastic packaging waste. Intellectual property rights can help businesses commercialise their findings, block competitor access to the market and make it easier for innovative start-ups to attract funding and pursue licensing agreements.