Patenting Beer – Claiming Compositions, Apparatus, and Methods of Brewing

Can I patent beer?

Yes, a brewer can patent beer.  Similarly, the inventor could pursue patents for new methods of making beer or new devices for making beer.  Those patents give the inventor the right to exclude others from making or using the invention without permission.  The idea is that the inventor should have the right to own the idea for a limited time in exchange for bringing it into the world.

The rapidly evolving Extreme Brewing community embodies innovation.  Brewers are constantly seeking out new— different — beers.  Accordingly, the industry is constantly inventing new technology.  

Beer can be patented as a composition of matter, giving the brewer ownership of that recipe

Beer can be patented as a composition of matter, giving the brewer ownership of that recipe

Like any other food technology, a new beer can be patented as a “composition of matter.”  The brewer would need to claim it in a patent application, explaining  how it differs from all other beers.  Here, defining the beer as a chemical invention provides numerous opportunities for distinguishing it from the prior art.

How to patent beer – claim it chemically

To receive a patent on beer, the inventor (i.e., the brewer) would benefit from claiming it as a new composition of matter.  The brewer should draft patent claims, defining the beer and showing its inventive features.  The claims should emphasize how the new beer differs chemically from all others that came before it.

For example, the beer could differ on account of using different ingredients.  Or, it could differ on account of selecting particular varieties of amounts of traditional ingredients.  For example, particular types and amounts of hops, herbs, spices, yeasts, or barley give rise to unique chemical properties.  Alternatively, a brewer may add new ingredients, such as cannabis to create new combinations of molecules. Those sorts of innovations would justify a patent on the new composition of matter.  For a brewer who creates something truly innovative, claiming the invention chemically could provide the best way for capturing the value of that contribution.

A chemical invention from start to finish

Each of the components used to brew can be defined chemically.  Then, during the brewing process, these ingredients undergo a variety of chemical transformations. For example, during fermentation, yeast converts carbohydrates into ethanol and carbon dioxide.  Ultimately, the brewer enjoys a finished product, having its own chemical composition.

Often, new foods and beverages are readily distinguished based on their molecular components.  Each of these distinctions provides an opportunity for patenting the invention.  The brewer creates inventive subject matter every time he deviates from traditional recipes or methods.  Recently the TV Show Brew Dogs discussed adding kelp to beer.  Dogfish Head Brewing recently introduced a beer with garlic.  And Ballast Point is currently serving a beer called “Red Velvet,” which is made with beets and chocolate.

Ballast Point is serving a "Red Velvet" Beer made with beets and chocolate

Ballast Point is serving a “Red Velvet” Beer made with beets and chocolate

An inventor of new (different) beer ideas can apply for a patent on those ideas.

Why bother patenting beer?

Many brewers scoff at the idea of filing a patent.  Or they find the idea immoral or untrue to the community.  Practically speaking, filing a patent application (on any technology) only makes sense if the invention is truly new and better.  (Something known or obvious cannot be patented).  If the invention meets those criteria, then filing a patent application would give the inventor the option for preventing competitors from practicing the invention.  The inventor/patent holder would get to decide who gets to use the invention.  For example, a small brewer with a patent could prevent (or demand royalties) if a large commercial entity began copying the invention.

What’s the process for patenting beer?

After drafting claims, the inventor would file them as part of a patent application at the United States Patent and Trademark Office (“USPTO”).  During patent prosecution at the USPTO, the application would be examined by an examiner.  The inventor would have the opportunity to explain why the beer is both new and innovative (i.e., nonobvious).  After convincing the examiner of the newness and nonobviousness of the beer, the examiner would allow the claims.  The inventor would then receive a patent on the new beer composition.

 

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