Four years ago, we wrote about the opportunities for patenting cannabis inventions. At the time, patenting cannabis technology was a novel idea.
Since that time, the cannabis industry has grown exponentially. And, several companies have developed cannabis technology. Most notably, Colorado-based ebbu has opened up a whole new area of formulated cannabis products, which use specific combinations of cannabinoids and terpenes to optimize the users’ experience.
Similarly, we predicted that a cannabis beer industry would emerge, creating a landscape for cannabis beer patents. Here’s the simple logic:
Recently, several players have entered the cannabis beer space. Below are updates that have been in the recent mainstream news.
Cannabis beer update: Hi Fi Hops
On August 8, 2018, Business Insider wrote an article about a new beer (Hi Fi Hops by Lagunitas/Heineken) that is brewed with marijuana. See also The Wall Street Journal. The Lagunitas brew is currently available in two varieties. The beer is available in two varieties, neither of which contain alcohol. One is purely THC, with 10mg per can (roughly the same as you’d find in an edible like a gummy); the other is a hybrid variety with 5mg of THC and 5mg of CBD.
CERIA – Cannabis Beer by Blue Moon’s Inventor Keith Villa
Heineken is not the first beer company to develop cannabis beer. In January of this year, Forbes Magazine reported that Keith Villa, inventor of Blue Moon left Molson Coors in order to develop a new cannabis beer company called Ceria. According to Ceria’s website, Mr. Villa’s new creation will leverage the proprietary cannabinoid science of ebbu (see above).
The partnership between ebbu and Ceria is interesting. Combining the idea of (A) cannabis beer with (B) purposefully designed cannabis formulation will allow Ceria to create next generation cannabis beer products that do not suffer from the inherent chemical variability of cannabis plants.
Province Brands – Brewing with Waste Material
Other companies appear to be pursuing a more conventional approach of using cannabis plant material in the brewing process. One notable spin on a conventional brewing approach comes from Michael Wendschuh and Province Brands.
Province Brands uses cannabis waste material as an ingredient within the brewing process. They are literally brewing beer with garbage. According to an article in the Guardian, Province Brand’s beer “offers an alternate use for what is essentially a waste product for the industry.” According to Michael Wendschuh, “we take [the waste] off the grower’s hands, saving them the cost of hiring a licensed disposal company to dispose of them.”
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
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
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.
Patent Pending Beer Pong Technology? Strong Arm Cups
Patents on beer pong? Maybe soon.
According to PRWEB, Strong Arm Cups has introduced a better way to enjoy beer pong. Strong Arm Cups has invented a beer pong kit, which contains 20 playing cups, 20 damper inserts that go inside the playing cups, and four drinking cups. The combination of the items in the kit promises to “eliminate the dirty and wasteful use of traditional, disposable plastic cups.”
The Strong Arm beer pong patent kit includes several items that improve the beer pong experience
Strong Arm Cups is designed to maintain the core aspects of beer pong while addressing some of the more disgusting elements of the current game, such as having to drink dirty beer due to crud getting on ping pong balls, multiple people drinking from the same cups, and beer being spilled during game play. Strong Arm Cups presents a simple solution to these problems by introducing designated playing cups with dampers for consistent game play and individual drinking cups with clear demarcations to show players how much to drink for each sunk cup.
The Strong Arm Cups beer pong kit will retail for $26 however an early bird special of $20 will be offered through the Kickstarter campaign.
Jeremy Armstrong, Inventor of Patent Pending Strong Arm Cups
The Strong Arm Cups kit was invented by Jeremy Armstrong. (The name makes more sense now, doesn’t it?)
“I’ve always loved beer pong, but was disgusted by how gross the playing cups and balls became,” said Jeremy Armstrong, creator of Strong Arm Cups. “I wanted to maintain the essential integrity of the game, while making a few minor improvements to make the game better for everyone.”
Strong Arm Cups was created by Jeremy Armstrong, a family-man who has always had a passion for beer pong. After a year of design and engineering work this patent pending beer pong kit is ready to be brought to the party thirsty masses. Armstrong is looking forward to growing his business in the future and improve more drinking games.
Where’s the patentable subject matter?
What can be patented about this invention? In the past we have discussed how new beers recipes, methods of making beer, and beer apparatus can be patented. Why not beer games?
The same rules of patentability apply to beer games as any other type of invention. The invention must be both new and not obvious. Here, I suspect that this combination of elements is new. That is, Mr. Armstrong is using these pre-existing pieces in a new way to achieve a new result. Provided that the “kit” is found to be new, then the patentability of the Strong Arm technology would depend on whether or not it “would have been obvious” to a “person of ordinary skill in the art.” That question will turn on the differences between the Strong Arm technology and the prior art in this field of endeavor.
Brewcraft’s Rogue Brutal Kit comes with all ingredients EXCEPT yeast, along with instructions for brewing the beer
Improving Brewing with Chemical Principles
From the standpoint of patent law, brewing could be divided into three categories of invention. These categories are as follows: compositions, processes, and devices.
Notably, each category of invention includes some sort of chemical component. Each Ingredient, intermediate, and finished product could be viewed as chemical composition. Processes describe making or using those compositions (for example the steps in a recipe). Equipment is used to manipulate or measure those compositions (for example, the carboy, funnel, airlock, etc.).
In an earlier article, we discussed patenting beer technology. We noted that craft brewing is filled with innovative people, bound to rapidly improve this technology. In this article, we discuss a chemist’s view of using two “kits” for home brewing. The first kit is Rogue’s Brutal IPA using the Beercraft kit. The second is Brewer’s Best Double IPA. Both were brewed using the Brewer’s Best equipment kit. The kits and equipment were purchased from Sound Homebrew in Seattle, Washington.
Brewing Process Steps from a Chemical Standpoint
Chemically speaking, the brewing process can be broken down into these fundamental steps:
EXTRACTING — Grain is steeped in warm-hot water, extracting certain components of those grains into the water, creating a “tea”.
DISSOLVING — Sugar (provided as malt extracts) is dissolved in the boiling tea, creating a “wort.”
EXTRACTING — Hops are boiled in the wort for varying lengths of time, extractingcertain components of those hops into the wort.
PHYSICALLY MANIPULATING —The wort is transferred to a fermenter and cooled. At this stage, some of the undissolved solids may be physically separated (e.g., filtering or decanting) from the wort.
ADDING BIOLOGICAL REAGENTS — Yeastis added to provide a fermentation catalyst
CONTROLLING REACTION CONDITIONS — The system is equipped with an airlock, isolating it from the surrounding atmosphere, thereby controlling the reaction conditions.
Each of the above steps requires the brewer to follow people-sized instructions with the hopes of producing favorable microscopic results. The brewer adds tangible amounts of water, grains, sugars, and hops to a pot. The brewer monitors the clock on the wall and the thermometer in the brew pot. The brewer’s ultimate goal is producing an aqueous solution of molecules (beer) that is pleasing to drink.
Practically speaking, brewer can follow people-sized recipes and produce good beer with reasonable reproducibility. Nevertheless, thinking about the underlying chemistry may provide some sources for future innovation. The rapidly growing craft brewing community seems to be constantly looking for new and different beers. Our hope is that focussing on the chemical underpinnings of brewing will create opportunities for making inventive beers.
Brewing Chemistry – Molecules, Time, Temperature, and Concentration
Brewing beer is chemistry. Generally speaking, the progress of a chemical reaction depends on (1) the chemical regents, (2) the reaction time, (3) the reaction temperature, and (4) the reagent concentration. The term “chemical regents” refers to the molecules in the reaction. Different molecules behave differently. Accordingly, the most important part of chemistry is understanding what molecules are in the reaction. Chemical reactions proceed more rapidly at higher temperatures and higher concentrations.
Making beer is chemistry. And craft brewers appreciate that hops are made of underlying molecules.
Chemical Reagents in Beer Compositions
The craft brewing community recognizes the importance of chemical reagents. In particular, extreme brewers recognize the benefits of trying new combinations of ingredients in order to create different flavors. Note, an “ingredient” to a brewer is a “chemical reagent” to a chemist.
One opportunity for further innovation in the craft brewing space could come from viewing the ingredients at the molecular level. By understanding which molecules correspond to certain flavor properties, a brewer could control the reaction conditions to select for desired flavor properties. The brewing community appreciates the molecular composition of certain ingredients during the hopping process. Different varieties of hops are described in terms of their molecular compositions (alpha and beta acids). Those hops are added to the boils at certain times in order to control how they convert into certain flavors.
Craft brewers should not limit themselves to thinking about hop chemistry. Each other ingredient added to the beer also has a molecular composition. Many of those molecules change and react during the brewing process. For example, many ingredients react with the oxygen while being heated (in the boil) in the presence of oxygen (in the air).
Oxidation Chemistry in Brewing
Another potential opportunity for creating new beers could come from a better understanding of oxidation. Oxygen is present throughout the brewing process. Oxygen from the air reacts with many of the ingredients, chemically changing those ingredients to provide different flavors. Additionally, oxygen is an important part of the initial fermentation process.
Thinking about how certain chemical ingredients react with oxygen could provide new ways to make different beers. For example, the concentration of oxygen could be controlled rather than relying on the amount naturally present in the air. One idea would be performing certain brewing steps under and inert atmosphere, by using nitrogen or argon. By limiting the amount of oxygen present, the brewer could control how much certain flavor molecules oxidize. Adjusting the amount of oxidation during brewing could lead to new flavor opportunities. Limiting oxygen could also create opportunities for using higher temperatures and longer times without the negative oxidative reactions. These sorts of techniques could give rise to new beer technology.
Oxygen is an important part of the fermentation process. In Extreme Brewing, Sam Calagione advises that a homebrewer introduces oxygen into the wort by “rocking the baby” before sealing the fermenter. Notably oxygen is also present in the headspace of the fermentation vessel. By varying the amount of oxygen present at various stages of fermentation, the brewer could improve the progress of the reaction.
The Llamas’ Brewing Company in Washington state appears to be the first company doing work in the air-free brewing space.
The Hercules Double IPA by Great Divide Brewing Co. provides information about ABV to three significant figures: 10.0% alcohol by volume
Chemical Concentration in Brewing
Lastly, a better understanding of concentration could provide some advantages to the home brewer. Molecular concentration is extremely important in a finished beer. For example, alcohol by volume (ABV), international bittering units (IU), a variety of aromatic compounds, and residual sugars play an important role in the beer’s flavor profile. These important metrics are reported to 2 or 3 significant figures. For example, the ABV in Great Divide Brewing Co.’s Hercules Double IPA is reported at 10.0% (three significant figures). Not 10% (one significant figure). Despite the importance of concentration, many beer recipes treat concentration as relatively unimportant.
Concentration refers to the amount of a given molecule within a given volume. (The standard is “moles per liter,” which is called the Molar concentration). In the laboratory, all mass quantities are converted into moles in order to understand the number of molecules. Then, for solutions, the concentrations are described as molar concentrations, to indicate the number of moles per liter of volume. In the home brew beer recipes, the volumes used to make the beer are “approximate” and also imprecise.
Many beer recipes treat volume with relatively litter precision. For example the Brewer’s Best Double IPA recipe instructed the brewer to bring the volume in the fermenter to “approximately 5 gallons” before pitching the yeast. Additionally, the glass carboys available at the Sound Home brew store did not provide any volume indicators. Some very simple improvements to home brewing equipment could be made by providing better volume indicators on the apparatus and paying closer attention to volume.
Please let us know what you think….
Our firm specializes in chemistry and chemical patents. But, we are relatively new to home brewing. Please feel free to use the comments section (below) to offer your thoughts on applying chemistry to the brewing arts.
The Bellevue Brewing Company’s Success Story Illustrates Innovative Behavior
Bellevue Brewing Company Exemplifies Innovative Beer
Bellevue Brewing Company was recently featured in the Bellevue Club’s Reflections Magazine. In the article, Allyson Marrs tells the story of how John Robertson founded the Bellevue Brewing Company. Ms. Marr’s story in Reflections about Mr. Robertson jumped out at us because we recently wrote several articles about patenting beer. Against that backdrop, the story of Mr. Robertson illustrates a journey of true innovation. He works within a complex art, where he must select multiple ingredients from a virtually limitless array of possibilities. Amidst the infinite number of choices, he develops unique beers intended to “come out and punch everybody in the face.”
Bellevue Brewing Company Selects Innovative Ingredients
One critical part of evaluating whether or not a composition is patentable involves understanding how the inventor selected the composition’s ingredients. Was the inventor making routine variations to an existing recipe? Or was the inventor departing from the teachings of the existing art? Mr. Robertson’s appears to embody the second case—he is not pursuing obvious variations on existing beer recipes. By contrast, he is constantly pursuing the “next step in beer evolution,” aiming to surprise the community, punching them in the face.
Bellevue Brewing Company Selects Ingredients from Many Possibilities
For a new composition having multiple ingredients (like beer), patentability depends on how many choices for potential ingredients were available to the inventor. Was the inventor working with a finite number of possibilities? Or did the inventor make selections from a virtually limitless number of possibilities? Having more possibilities and more complex combinations of ingredients usually supports an inventor’s case for patentability. Here, Mr. Robertson’s case illustrates the later option—he selects different ingredients in different proportions than other beer makers. These deliberate departures from the existing recipes create a strong case for patentability.
Although we have not identified any patent applications from the Bellevue Brewing Company at this time, the company is rather new. According to Ms. Marr’s article, their first draft was poured less than one year ago— in December of 2012. If that instance was the first disclosure, the inventors would still have about 2-3 months to pursue patent protection on recipes first disclosed in December of 2012. In any event, this company will certainly continue to push the brewing arts forward, making better, more innovative creations that aim to punch us in the face. We look forward to seeing what’s next.
Continuous Hopping Illustrates Methods of Making Beer
New methods of making beer are patentable. We recently posted an article about opportunities for patenting new beer varieties as compositions of matter. In addition to claiming the new beer as a composition of matter, the brewer could also patent methods of making beer. Given the number of variables in beer making (selecting ingredients, selecting quantities, temperature, mixing, timing, yeasts, etc.), the brewing art is open to a wide variety of improvements in techniques. As discussed below, inventing new brewing methods may also give rise to new devices for making beer.
As a rough guide, a new brewing method could be patentable if it deviates from the accepted methods in the craft. A new method should subert and influence the tradition of brewing. A patentable method of brewing beer should involve doing something different during the brewing process that no one else has ever done before. As Sam Calagione (owner of the Dogfish Brewery) describes it, the technique should “push the envelope” or “stretch the boundaries of the definition of good beer.”
Below, are two examples of inventive methods of making beer: Continuous Hopping and Real Time Hopping. Both were pioneered by Mr. Calagione, who aims to make “off-centered ales for off-centered people.” His dedication to “not brew beers that maintain the status quo” has led to much innovation in beers, brewing techniques, and brewing apparatus.
Continuous Hopping Invention
Continuous hopping illustrates one recent advance in brewing techniques. In 2001, Dogfish Head introduced the world it’s “continuously hopping” technique with the release of it’s “90 Minute” IPA.
At the time, continuously hopping a beer was a dramatic deviation from the traditional brewing methods. Brewers added their hops at the beginning and end of the boil phase of brewing. Contrary to conventional wisdom, Mr. Calagione invented a brewing process, which continuously added hops to the beer, adding hops continuously throughout the boil.
Real Time Hopping Invention
Randall the Enamel Animal is a Device invented by Dogfish Head Brewery for “Real Time Hopping,” one of many methods of making beer pioneered by Dogfish Head. Real time hopping provides the benefit of infusing hop character as it is being poured from the tap.
“Real time hopping” represents another recent advance in brewing methods. According to Sam Calagione, real time hopping is a “method in which you add hop character to the beer at the point that you are actually serving it.” Real time hopping only works when the beer is being served through a tap. It requires a special device, called an organoleptic hop transducer.
According to their webpage, “Randall, a true Dogfish Head invention, is an organoleptic hop transducer module. What’s that you say? A double-chamber filter that you connect to a tap of your favorite beer and fill with flavor-enhancing ingredients.”
New Brewing Methods Gives Rise to New Devices
Notably, in each of the above new methods for making beer, the brewer also invented a new piece of brewing apparatus. That new devices would be considered a separate invention. For example, the inventor could have pursued patent coverage for both (1) Randall, the Enamel Animal and also (2) methods of infusing hop character into beer. The inventor would have needed to claim the invention within one year of disclosing it to the public. According to the USPTO database, Mr. Calagione did not pursue either route. (He is not listed as an inventor on any US patents or applications). Accordingly, it appears that Mr. Calagione has generously dedicated his innovations to the good of all brewers.