In a surprise decision in the US, the makers of Splenda have lost their patent for sucralose which is the generic name for Splenda. This means that competitors can now sell the same sugar substitute. At the moment Splenda brings in 25% of Tate & Lyle’s profit.
Although they are probably not happy about the loss, the decision is unlikely to devastate the company. Luckily along with their patent they have built up a significant brand reputation. Consumers are more likely to recognize the name and the distinctive yellow packaging than their ingredient sucralose. There is already a lot of competition in the artificial sweetener market. Although the various sweeteners taste different their branding is likely to influence the consumer as much as or even more than the taste of the product. Sweet and Lo and Equal, two of the major competitors of Splenda, use Aspartame which has been off patent since 1992 yet both remain successful based on the power of their brand.
According to the Tate & Lyle company spokesperson, they are going to appeal the decision. It will be interesting to watch the progression of the case to the appellate level.
This news shows the importance of not merely relying on one type of IP protection alone.