Patenting Cannabis Beer

Patenting Cannabis Beer

The Wall Street Journal just reported that a Corona brewer has agreed to invest nearly $200 million in a Canadian marijuana grower, with plans to develop cannabis-infused drinks, e.g., cannabis beer.

Constellation Brands Inc. has agreed to take a 9.9% stake in Canopy Growth Corp., a Canadian marijuana company. Constellation Brands plans to work with Canopy growth to make and sell cannabis-infused beverages.

This collaboration caught our attention because of the opportunities for creating new patentable subject matter.

In another article, we wrote about patenting beer and brewing inventions.  In that article, we explained that a new beer can be patented as a “composition of matter.”  Defining the beer as a chemical invention provides numerous opportunities for distinguishing it from the prior art. The critical requirement is explaining how it differs from all other beers.

The cannabis plant comprises about 500 different molecules. Many of those molecules have never been formulated into beers.

Cannabis Beer Inventions

Given that cannabis beer is a relatively new field, the “prior art” is relatively sparse.  There are very few cannabis beers in existence.  Accordingly, there are very few compositions combining the molecules in beer with the molecules in cannabis.  As a result, many varieties of cannabis beer could be defined as new (i.e., different from anything previously made) compositions of matter.

The chemical profiles of cannabis beers could be used to distinguish that class of beers from all previously made beers.  An inventor making that class of beers for the first time could claim the exclusive right to those inventions.

What is the process for patenting a cannabis beer?

First, distinguish the cannabis beer from any previously existing chemical composition.  (Ask – what makes this different?)  Then, use those points of distinction to define the invention.  Then, claim that invention.
After drafting claims, file those as part of a patent application at the United States Patent and Trademark Office (“USPTO”).
During patent prosecution at the USPTO, the application will be evaluated by an examiner.  During that process, the inventor has the opportunity to explain why the claimed cannabis beer is both new and innovative (i.e., nonobvious).  After convincing the examiner of the newness and nonobviousness of the claimed beer, the examiner allows the claims.  Then, the inventor receives a patent on the new beer composition.  That patent provides the inventor with the exclusive right to make, use, or sell the claimed composition.

Patenting Psilocybin Inventions

Psilocybin Technology – Magic Molecules from Magic Mushrooms

Recently psilocybin (the active ingredient in “magic mushrooms”) has received considerable attention. Professor David Nutt and his team at the Imperial College of London recently  published an article in Scientific Reports about “Psilocybin for treatment-resistant depression: fMRI-measured brain mechanisms.” The study demonstrated that administering the psilocybin resulted in “pushing [the brains of depressed people] out of their depressive states.”  This effect is analogous to electroshock therapy — where a person’s brain is effectively rebooted.

Although psilocybin is currently a schedule I drug, the laws may be changing.  Recently, the Huffington Post and many others reported that California may legalize (or decriminalize) psilocybin.  In addition to Dr. Nutt’s work in treating depression, the Financial Times reported that Compass Pathways will soon test it for therapeutic value as an antidepressant.  Scientists at John’s Hopkins University are also studying the use of psilocybin for treating anxiety and depression.

Is New Psilocybin Technology Patentable?

Answer: Yes.

Psilocybe Cyanescens is one of about 200 species of naturally occurring “magic mushrooms” that contain the molecule psilocybin

About a year ago, we posted an article about Patenting Mushroom Inventions.  Our thesis was simple. Many types of mushroom (or fungi) inventions could give rise to patentable subject matter. Such patentable subject matter can be divided into the following categories: Compositions of matter; Methods or Processes; Plants or Living organisms; and Machines or Devices.  Of these categories, we explained that composition of matter inventions were almost certainly the most valuable kind of mushroom inventions.

The above articles signify the beginning of a new field — psilocybin technology. Developing a new field often involves rapid innovation and pioneering inventions. In other words, new industries often develop first-in-kind technologies as opposed to optimizing or refining existing technology. We recently saw this sort of innovation in the cannabis space.  Below, I have compared the development of the cannabis industry with the impending emergence of the psilocybin industry.

Comparing the Patentability of Psilocybin Inventions with Cannabis Inventions.

The present psilocybin situation shares many similarities with the recent explosion of the cannabis industry.  Here’s why:

  1. Not long ago, cannabis (a naturally occurring plant) was demonized as an extremely dangerous drug with no medicinal or therapeutic value.  It was criminalized in about 1970 under the controlled substances act as classified as a Schedule I Controlled Substance.
  2. Then, people realized that this characterization of cannabis may have been somewhat mistaken.
  3. Then, the regulations on cannabis became less strict. First, medical cannabis.  Then, recreational cannabis.
  4. Now, we have an enormous recreational and medicinal cannabis industry.
  5. This young industry is rapidly developing better, safer, and more effective cannabis technologies.  For example, the cannabis technology leader ebbu, LLC has created a whole new category of formulated cannabis products with effects unexpectedly different from the plant itself.  New, man-made cannabis inventions like those are patentable.

Opportunities for Breakthrough Technologies

The Psilocybin and cannabis fields both share three critical features.  First, both are products of nature.  Second, those natural products were criminalized by 1970’s laws, based on 1970’s reasoning.  Third, that criminal status chilled innovation.  As a result of these three facts, many naturally occurring substances (in both “magic mushrooms” and cannabis) were understudied and underdeveloped.  Accordingly, the these industries remained stuck in about 1970. Until recently, the state of the art for cannabis was smoking plant matter.  The state of the art for psilocybin is almost exclusively eating mushrooms.

The situation for psilocybin technology is slightly different from cannabis.  We have the benefit of history.  We have been watching the cannabis industry develop. Accordingly, we have a pretty good analogy for how things will play out.

Most likely, the state of the art will evolve beyond eating mushrooms and exclusively focusing on only one molecule.  Soon, scientists will recognize that those magic mushrooms have dozens of pharmacologically active magic molecules that can be purposely formulated into safer, more effective, and more reliable products.  These advances will arise from human innovation, making them patentable.

Patenting Baby Technology

Patenting Baby Technology

Over the past year I have become extremely interested in strategies for patenting baby technology.  Why?  Because the industry is enormous and products designed for infants and toddlers are constantly evolving.  Each new generation of baby products seeks to provide parents with useful (and hopefully beneficial) technology.

At Chadeayne, LLC, we have spent about the last year evaluating a series of baby products with an eye towards identifying critical differences and opportunities for patenting new ideas.

What options exist for patenting inventions designed for newborns, babies, infants, toddlers, children, etc.?

First, “baby technology” can include several kinds of products.  (I’ve listed some of them below.)

These products could fall into one or more categories of patentable subject matter, including Devices, Machines, Compositions of Matter, and Processes.  See “What can I patent?”  Once framed within one of these categories, the usual criteria for patentability apply.

Baby Inventions – Examples of Patentable Ideas

New child care products constantly enter the marketplace.  These include things like nail clippers, thermometers, monitors, diapers, lotions, soaps, teethers, clothes, furniture, etc.  Here’s a recent example of how I stumbled upon a source of innovative baby products….

Earlier this week, I was walking on Front Street in Issaquah, Washington. I noticed a new BooginHead store.  I couldn’t help myself from banging on the window because I have been really geeking out over baby technology.  They let me in.  (I love Issaquah).
Within 5 minutes, I could tell that BooginHead is an innovative company.  They are making new products. They focus on solving problems and creating better products for parents.

BooginHead’s SippiGrip is a great example of innovation within the BabyTech space

After a small amount of web research, I confirmed my hypothesis. About a decade ago, BooginHead’s CEO, Sari Davidson, developed a new product called SippiGrip.  The SippiGrip product basically solves parents’ problems with their child’s cup throwing games.  Since then BooginHead has been dedicated to “launching new and useful product for parents.”  Thank you Sari and BooginHead!

Can I Patent My Baby Invention?

At a high level any question of patentability usually depends on whether the invention is new. In other words, has the invention been previously disclosed?  If not, then the invention is probably new.
The second question is whether the invention would have been obvious when it was invented?    If not, has any combination of publications provided enough guidance to render the invention obvious?  In other words, would another baby tech innovator have considered your invention obvious after reviewing the prior art?
When I work with inventors, I usually suggest organizing the closest alternatives to their invention into a table of differences.  I find that making a table of differences often improves the information exchange between innovators and their patent professionals.

Categories of Patentable Baby Products

Baby Foods and Feeding

Although natural foods are not patentable (not new), the number of engineered foods increases every day.  These include baby formula, nutritional supplements, etc.  Patenting new food technology in a separate post.  Those principles apply to baby foods.

In addition to foods, the industry is constantly introducing new feeding technology.  Feeding technology includes products like cups, bottles, plates, flatware, placemats, etc.


New games, books, toys, and other entertainment products could be patented as devices or machines. Some examples of “toys” would including things like Baby Rattles, Musical Toys, Ride-On Toys, Blocks, Balls, Teether Toys, Bath Toys, Dolls, Action Figures & Statues, Stuffed Animals & Plush Toys, Arts & Crafts, Puppets, Games, Puzzles, Sports & Outdoor Play, Tricycles, Scooters, Wagons, etc..

Electronics, Software and Mobile Device Apps for Kids

In today’s world, there’s an app for almost everything, including entertaining and/or educating children. Accordingly, we see lots of new apps for tablets (e.g., ipad aps), phones (e.g., iPhone apps), televisions, computers, so-called “Kids’ Electronics,”Video Games, or other technology designed for children.
These new and useful software tools are potentially patentable as methods, systems, and/or processes. For example, at Chadeayne LLC, we have an ongoing project that is focused on developing an educational mobile app for 0-2 year olds.

Kids’ Furniture

Little people have many special furniture needs.  For example parents of small children often need ways of safely, comfortably, and reliably confining their children.  Devices for confinement include cribs (and variations like pack-n-play), car seat, pillows, bouncy chairs, Kids’ Décor & Storage, swings, and non-tipping seats, etc.  New baby furniture products are usually patentable as devices or machines.

Methods Useful for Babies

New methods or processes are potentially patentable.  Sometimes the new method of process exists alongside a new device or composition.  However, sometimes the innovation arises from using an old device in a new way.  In either case, the method or process is potentially patentable.  The challenge to patentability comes from defining the new method or process in a way that demonstrates some concrete real-world results.  (Not just abstract thinking).

At Chadeayne LLC, we are presently working to create several new methods of teaching children under 2.  For example, we are working with leaders in Brazilian Jiu Jitsu to develop methods of teaching children under two Brazilian Jiu Jitsu.  Sounds crazy right?  Good.  That’s one indication that it’s probably innovative activity.

New Mood – New Nutraceutical Composition

Onnit’s New Mood – A New Nutraceutical Composition Comprising Natural Ingredients

I just came across New MOOD.  New Mood is a supplement made by Onnit.  Onnit claims that New Mood improves your mood and reduces your mental stress. Sounds awesome, right?  I think so, especially because I am interested in the patentability of nutraceuticals and nootropics.

After a quick look at the New Mood technology, my two big questions are as follows:
1. Could Onnit patent this?
2. Does New Mood really work?

1. Patenting a combination of known, naturally occurring ingredients

From what I can tell, New Mood is a combination of known, naturally occurring ingredients. Normally, so-called “products of nature” are not patentable.  (A product of nature is not new.  A product of nature is not “man made.”)
However, in the case of New Mood, the naturally occurring ingredients are combined into a specific formula that is NOT found in nature.  Accordingly, it is “man made” and (potentially) new.

2. Does New Mood Provide Unexpected Results?

It’s possible that the answer to question #2 determines the answer to the question of patentability.  Here’s what I mean: If New Mood really is a “gamechanger,” like Onnit claims, then that “game changing” achievement could help them earn a patent on the composition.

Provided that the New Mood composition is “new,” then the question of patentability would probably turn on “obviousness.”  Here, I think the question of patentability would depend on whether this particular combination provides some sort of unexpected results when compared to the known properties of the ingredients.

I’m eager to learn more about this invention.  Is it a”game changing” technological advance or a clever marketing campaign?  The former is probably patentable.  The latter is probably not.

Patenting Nootropic Compositions

Nootropic Technology and Patents

Nootropics are also called “smart drugs” or cognitive enhancers.  The term “nootropic’ covers drugs, supplements, or other substances that improve cognitive function.  In particular, these substances improve so-called “executive functions” such as memory, creativity, or motivation.

Examples of known nootropics include caffeine, modafinil, the racetams (e.g, piracetam, aniracetam, phenylpiracetam), nicotine, amphetamines, various, psychedelics, and many plant derived extracts and supplements.

Recently, ebbu, the leader in engineered cannabis products has figured out how to make formulations that enhance creativity and focus without the undesired side effects often associated with cannabis.

The Neurohacker Collective offers a product called Qualia, which they define as “a supplement stack with 42 ingredients that will optimize every major system of your brain so you can be more productive and create more impact in the world.”

Research and development in nootropics appears to be growing rapidly.  And rightfully so.  Who wouldn’t want a simple way to enhance cognitive function?  Now, the question on my mind: Can we patent these nootropics?

Patenting Nootropic Innovations

Nootropic research interests me for two reasons — one personal and one professional.

Personally, I like the idea of supercharging my brain.  Taken to the extreme, is there a supplement that would help me learn things faster?  Could I learn Brazilian Jiu Jitsu techniques in a few minutes instead of a few months? Ideally, I would like to learn things as rapidly as my 8 month old.

Professionally, I like the field of nootropics because of the opportunities for creating patentable subject matter.

Nootropics can be claimed as compositions of matter.  Compositions of matter patents are my favorite because they define the invention chemically.  (I love chemistry and chemical patent law).  Also, I think composition claims are among the strongest claims available to an inventor because they cover all uses of the claimed composition.

Patenting New Formulations of Naturally Occurring Compounds

I’m also interested in nootropics because many of them appear to be found in nature — in plants and fungi.  That creates some interesting questions of patentability.  Here’s why: A natural product cannot be patented.  It’s not new.  It has been around forever in nature.  And under US patent law, only new things can be patented.

However, while the naturally occurring form of the nootropic cannot be patented, new forms or formulations of the nootropic can be patented.  Accordingly, if researchers discover a cognitive enhancer in some naturally occurring mushroom, they could not patent the mushroom itself.  (It’s not new).  But, they could probably patent purified forms of the nootropic and/or new formulations using that nootropic.  They could also pursue new methods of purifying the nootropic and/or formulating it.  In each case, the critical question is whether the “invention” is the product of human engineering.  (For a related discussion, see the uproar over Nestle and its patents related to the Fennel flower).

Likewise, a company like Neurohacker could seek patent protection for their Qualia product– assuming that their combination of 42 ingredients is a new combination.  Provided that the combination is new, the major hurdle to patentability would probably come down to whether that combination would have been “obvious” when the Neurohacker researchers made it.

At a high level, I cannot think of too many 42-member combinations that are “obvious” to formulate without some sort of guidance.  Nevertheless, the invention would be evaluated at the U.S. Patent and Trademark Office by the legal standard of obviousness.  Under that standard, I suspect that the inventors could demonstrate that their combination is not obvious by providing evidence about how that combination optimizes every major system of the users brain and/or makes the user more productive and/or allows the user to create more impact in the world.


Patenting Brazilian Jiu Jitsu Inventions

Can I Patent a Brazilian Jiu Jitsu Invention?

Yes, Brazilian Jiu Jitsu inventions are patentable.

One example of a Brazilian Jiu Jitsu patent is the Elite Intensity Band.  According to their website, Elite Brazilian Jiu-Jitsu has developed and patented a system to provide a clear visible indication of the level of intensity at which each member wishes to train.  “By having a standardized method of measurement for intensity our members can help each other calibrate, our Professors and Coaches can help make better match ups, and new members feel more comfortable participating in the sport knowing there is awareness and process to reduce injury and ensure the best experience for all members.”

Elite Intensity Band

How Do I Patent My BJJ Invention?

The inventor of new BJJ gear can draft patent claims and file a patent application directed to that new technology. To be patentable, the BJJ technology must be “new.” In other words, it must be different from all BJJ technology existing before it.
In addition to being “new,” the invention must not be an obvious variation of BJJ technology that existed when the new BJJ technology was invented. The legal test for obviousness is often very complicated. The test of “obviousness” is called the Graham Test, which we wrote about it in an early post.
As a rough guide, an inventor should be able to receive patent protection on any significant improvement over the state of the art. (For example, a better mouth guard, a new fabric, or a new design for a training tool). In the case of BJJ gear: the greater the difference from existing gear, the more likely it is that the invention can be patented. Also, if the invention provides an unexpected benefit beyond similar BJJ gear, then it is probably patentable.

Subject to the above requirements (new and not obvious ), most categories of BJJ gear could give rise to patentable subject matter. For example, innovations in clothing (such as the gi, rash guards), training aids (such as grappling dummies), diagnostic tools (such as video analytics software), equipment (such as mats, clocks, tape, safety gear), chemicals (such as nutrition, sports drinks, sanitizers), and personal care items (such as cleaning wipes or rash cream) could all be patented.  Below, I’ve discuss another category of patentable subject matter that creates some interesting questions: Could someone patent methods (aka “processes”) for jiu jitsu? What about methods of teaching or training jiu jitsu?

What about Patenting BJJ Techniques?

In my mind, one interesting question involves patenting BJJ techniques.  New BJJ techniques are appearing every day.  For example, last night I watched a video of Eddie Bravo teaching rubber guard to Rickson Gracie. (Granted the video was from 2014 but it illustrates innovation in BJJ techniques).

In theory, a truly new BJJ technique could be patented.  It would be a NEW method of self defense.  Provided that it wasn’t obvious, that method would fulfill the requirements for patentability (New and not obvious).  In theory, the patent holder could exclude others from using the technique.  Crazy right?  Here’s how it would work:

Presumably, at some point, Eddie Bravo’s rubber guard was new.  At that time, Mr. Bravo could have filed a patent application on that rubber guard technique.  Once granted, Mr. Bravo would have owned the right to exclude all others from practicing/using the rubber guard.

In the case of Mr. Bravo’s rubber guard, patentability is now a moot point.  It’s not “new” anymore because more than one year has elapsed since the invention was publicly disclosed on Youtube.  Nevertheless, the academic questions about patenting a BJJ technique remain: Could one of the many innovative BJJ practitioners exclude others from using a new technique they develop?  Or, could they charge a royalty for using that technique?

Thankfully, I suspect that patenting BJJ techniques will remain a purely academic question.  For the patent geeks out there, I’ve included the video below so that you can think about how Mr. Bravo’s disclosure probably satisfies all of the written description, enablement, and best mode requirements within a publicly available time-stamped disclosure.  You might also notice how Mr. Gracie’s reaction seems to support the notion that the technique was NOT obvious at the time. (Think “skepticism by experts”).

Discount for Local Inventors

Chadeayne LLC Offers Discount on Patent Services to Support Local Inventors

Chadeayne LLC has offices in Issaquah, WA, including one at the corner of Sunset and Front Street

Chadeayne LLC has offices in Bellevue and Issaquah, WA, including one at the corner of Sunset and Front Street

Chadeayne LLC is a patent prosecution firm with offices in Issaquah, including one just off of Front Street. Our firm’s mission is to help inventors define and protect their ideas by using the patent system. We focus on one thing: turning your product or idea into patented property.  Like most of you, our CEO Andrew Chadeayne, also wears many hats. He is an inventor, entrepreneur, chemical patent expert, and President of SwimSpray LLC.




Discount for Local Inventors

During November 2016, Chadeayne LLC is offering a 30% discount on our services for local inventors.

Interested? Come meet with us for a free consultation. Contact Marykate using the box below to set up a convenient time to talk.


Patenting Mushroom Inventions

Mushroom Inventions

Mushroom or fungus inventions fall into one or more of the following four categories:

  1. Compositions of matter;
  2. Methods or Processes;
  3. Plants or Living organisms; and
  4. Machines or Devices.

All four of these categories of invention are potentially patentable.  The critical questions for patentability is whether the invention is both (1) new and (2) non-obvious.  Of these, composition of matter claims are particularly valuable because they cover all uses of the composition.  Below, I briefly explain each of the four categories of patentable subject matter.

Patenting Mushroom Compositions

New mushroom compositions are potentially patentable.  To be patentable, the composition must be manmade–in other words, not naturally occurring.

Isolating a specific compound from a mushroom would create a new patentable composition because the purified form of that compound would be new. Similarly, creating an unnatural combination of mushroom compounds would give rise to a new, patentable composition.  Even though the individual components were known, that particular combination did not exist before the inventor prepared it.

Examples of patentable compounds would include a purified form of an individual molecule found within a mushroom.  Such a molecule could have a variety of uses, such as a drug candidate. (See, e.g., Patenting Psilocybin Technology).

New combinations of fungal materials could also be patentable, such as within supplements.  For example, Fungi Perfecti makes a wide range of products comprising freeze-dried mushroom mycelium/fruitbodies.  Provided that Fungi Perfecti chooses particular non-naturally occurring mixtures of the fungi, those products would be patentable as new compositions.  Again, even though the individual components were known, that particular combination did not exist before the inventor prepared it.

Additionally, new compositions useful for cultivating mushrooms would be patentable provided that those compositions were not previously disclosed prior to the invention.  Here, new formulas for enhancing mycelial running or fruitbody formation would be patentable.

Patenting Mushroom Devices

Devices invented for mushroom cultivation are patentable. Patentable devices could include tools or machines used in cultivating or harvesting mushrooms.  For example, devices for sterilizing equipment, purifying air, facilitating spawning, and/or initiating fruitbody formation.

Some examples of inventions that would fall under the category of “device” include improvements on spawn bags, filter patches, humidifiers, flow hoods, lights, hydrometers, etc..

Patenting Fungus Processes or Methods

Inventive processes for cultivating and harvesting mushrooms are patentable.  For example, in 2005, Stewart C. Miller patented a process for growing morels. The process involves inoculating tree seedlings with morel mycelium, then allowing the mycelium to grow, and lastly killing the seedlings to induce the morels to fruit.  See US Patent 6,907,691 and
US Patent 6,951,074.

Methods of using fungi are also patentable.  For example, Paul Stamets has patented a method of attracting (and killing) harmful insects by using the non-sporulating mycelial stage of insect-specific parasitic fungi.  See US Patent 6660290, entitled “Mycopesticides.”

Patenting Genetically Modified Fungi

New, man-made organisms can be patented.  Accordingly, the inventor of a genetically modified fungus could apply for a patent on that organism.  Here, the inventor would probably also seek a patent on the method for making the new GMO fungus.  This technology has recently become important within the context of genetically modified foods.  Specifically, the CRISPR/Cas9 edited mushroom was engineered to that resist browning when exposed to air.

Top 5 Patentable Food Technologies

Top 5 Patentable Food Technologies

Food and food technology are both patentable.  Patenting a new invention is one way for a firm to stay ahead of competitors. Many inventors never consider patenting food technology. Many wonder whether food is patentable at all.  To be clear, anything new and not obvious is potentially patentable. Including food and all of the technology relating to food.  For example, methods of preparing food, equipment, software, and novel compositions.  Below are five current examples of exciting technologies and innovations within the food industry.

1. Patenting Sous Vide Technology

Sous vide is a French technique where cooking is done through the use of an immersion circulator. Food is placed into a plastic bag, air is removed, and placed into a water bath at a precise temperature. The immersion circulator keeps the water at a precise temperature gently cooking the food all the way through.

The technology is expensive and was relegated mostly to restaurants. However, a number of retail products have become available (e.g., Joule, Anova, and Sansaire) that are relatively affordable and growing in popularity.

New food preparation devices are patentable

New food preparation devices are patentable


While the general technology is not new, improvements made to the technology are new. These new advances are potentially patentable, as long as the advances are new and not obvious.

2. Patenting Smaller Versions of Large Scale Equipment

Larger scale, industrial equipment is often very expensive. Using this technology for producing foods on a smaller scale for the average cook is often cost prohibitive. Improving equipment for cost effectiveness is patentable.

For example, a conche (Indi Chocolate) is a machine that distributes cocoa butter within chocolate to develop flavor and texture. The process is so important, that many chocolate manufactures keep their conching process secret.  See

Products like these may seem niche, but there is a growing trend amidst home cooks and chefs wanting to have control over the quality of their ingredients. Improvements to existing technology may focus on either home or restaurant use. Many home cooks may not want to make their own chocolate, but smaller restaurant, cafes, or bakeries are potential users.

3. Patenting Phone Apps and Devices for Food Preparation

Within the context of food technology, smartphones are used for setting a timer, for grocery shopping, and organizing recipes. But smartphones are rarely for preparing food.

For example, a thermometer that plugs into your phone. A growing trend is integrating smartphone technology into appliances. Samsung has a new oven connecting to a smartphone allowing controlling temperature, measuring food weight, and calculating calories.

4. Patenting Gluten Free Products and Compositions

Gluten free diets are a growing trend. Most grocery stores have specific gluten free sections. Maintaining gluten free diet is difficult because gluten is found in most foods. For example, wheat is used as part of the fermentation process for soy sauce. Many foods contain flour as a thickening agent and for maintaining food’s structure. Cross contamination becomes a risk for naturally gluten free foods exposed to gluten comprising foods.

Gluten free food technology could especially be valuable in the area of baking because gluten provides pastries, breads, and pizzas their structure. Gluten free technology is patentable by patenting the chemical composition. The chemical makeup of these products must be unique, i.e., never disclosed before.

5. Patenting Novel Food Compositions, Such as Aquafaba                                                            

Vegan diets are not just for ethical reasons but also for food sustainability reasons. Maintaining a vegan diet is difficult because animal based products are used in many foods. Eggs have many chemical properties that are hard to find in other ingredients. Some attempts for replicating these chemical properties are using various starches or other hard to find substitutes. But a recent discovery could change everything.

Aquafaba – the liquid from cooking legumes, like chickpeas – has similar properties as egg whites. Experts believe that the protein and starches in Aquafaba mimic the proteins in egg whites. For example, whipping Aquafaba to make meringue. Developing Aquafaba technology could benefit millions of vegans by producing protein compositions. Advances in this area is patentable.  New forms of Aquafaba could give rise to patentable compositions of matter.


Conclusion – Food and Food Technology is Patentable

Food technology is an enormous and growing industry.  Even more remarkable–this industry is just beginning to tap into the opportunities available for protecting and monetizing technology by using the patent system  Patents provide a powerful tool for those creating new and not obvious inventions.


This post was written by Alex Kong, JD.  Mr. Kong is an associate attorney at Chadeayne LLC with a background in chemistry and specialty in food technologies.

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.