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.”
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
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 https://indichocolate.com/collections/chocolate-making-machines/products/wonder-grinder-model-2
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 attorney with a background in chemistry and specialty in food technologies.
Recently the Huffington Post published an article on an ingenious new food that gets kids to eat their broccoli. When I see achievements like this, I always wonder whether the inventor filed a patent application on the new technology.
Foods are patentable, just like any other composition. The patent laws do not distinguish a food simply because we eat it. Rather, the law would classify food as a composition of matter. At the United States Patent and Trademark Office, food recipes would probably fall under Patent Class 426: “Food or Edible Material.”
A new food can be patented as a composition of matter.
Food is Patentable as a Composition
Under U.S. Patent law, an inventor can patent a process, machine, manufacture, or composition of matter. The food must be new, useful, not obvious, and meet the other disclosure requirements for patentability. However, the critical point remains the same: Food can be patented. The patent laws do not discriminate food from any other composition of matter.
The Food Must be “New”
Only new inventions can be patented. This is ofte atent application35 U.S.C § 102. Often, a “new” food is difficult to distinguish from a prior art food. For example, an inventor may struggle to differentiate a truly innovative soup from all prior art soups that came before it. For a truly new soup, drafting a successful patent application depends on the inventor’s approach to drafting claims.
A clever way to distinguish one food from another is to describe it at the molecular level. In the soup example above, understanding how one soup differs in molecular composition would provide a powerful means for defining the differences. Instead of arguing why certain ingredients are subjectively better, the inventor could objectively quantify the improvement. Instead of qualitatively explaining why certain recipes are better, the inventor could point to concrete molecular differences. Defining a food invention in terms of it’s molecular composition provides a significant advantage when arguing for patentability during patent prosecution.
The greatest challenge is explaining why a new food was truly innovative. Here, Chef Peter Wong worked with some unique combinations of ingredients at the 2012 DC Chili Cook-off in Washington, DC.
The Food Must be “Non-Obvious”
For most inventions, obviousness is the critical hurdle to getting a patent. The non-obviousness requirement for patentability is set forth in 35 U.S.C. § 103. In short, the inventor must show that the food would not have been a trivial or routine advance beyond other previously disclosed foods. This area of patent law is very complicated for a variety of reasons. The undisputed standard for evaluating whether an invention is obvious can be found in the Supreme Court’s 1966 Graham v. John Deere decision.
The Inventor Must Adequately Disclose the Food.
In order to receive a patent, the inventor must provide a comprehensive disclosure of the invention. The inventor must also teach the public the best way to make and use it. In the case of a new food, the inventor must teach the public how to make it without “undue experimentation.” The recipe must be something that can be reproduced by someone having ordinary skill in the industry. This disclosure rbargain an inventor accepts when applying for a patent. The inventor must give up the secret recipe in exchange for a limited period of patent protection.
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.
Cover of Wired Magazine’s October 2013 issue, featuring the Science of Cooking.
Cooking with Science
Wired Magazine’s October 2013 Issue featured the topic “Cooking with Science.” This issue jumped out at me because of our recent articles on patenting food, flavors, and beer. In those articles, we noted that relatively few foods or beverages are patented.
The lack of food patents seems somewhat surprising in view of two things: (1) the food & beverage industry is immensely important; and (2) food & beverage products fall squarely within the “composition of matter” category of patentable subject matter. Furthermore, new methods for making food and culinary equipment would give rise to patentable inventions.
Chef David Chang Discusses the Science of Cooking
In the October 2013 print issue of Wired, the authors discuss cooking with science on pages 136-150. The most comprehensive piece is written by David Chang, Chef and Founder of the Momofuku Restaurant Group. Here’s what Mr. Chang had to say about cooking with science:
I’ve also noticed a growing disconnect between the role of food science and today’s food culture. Cooking is a scientific process, after all, but calling food “processed” has become a slur. It’s almost as if we are expected to hide the science that goes into our food. This wasn’t always true: If you look at advertisements from the 1940s and ’50s, they celebrated that the latest chewing gum used artificial sweeteners and flavoring agents, because that was the hot thing. Today, though, everything is supposed to be “natural,” simple, old-fashioned. We’ve been brainwashed to believe that science is scary.
I think Mr. Chang has a point. Somehow society has developed a mental block about viewing food as chemistry. People are horrified about having “chemicals” in their food. But, technically speaking, the food we eat is made 100% of “chemicals.” Pick any food. That food can be analyzed as a chemical composition. The term “chemical” simply means very small. Chemistry refers to the way things look at the molecular level. It refers to the atoms and molecules that bond together to make up the macroscopic world that we see and touch.
The Food—Technology Disconnect in Patent Law
Much like the consumer’s boundary between cooking and chemistry, the food industry imposes a similar boundary when it comes to patenting the technology. Very few food innovations are patented whereas other chemical disciplines frequently utilize the patent system. (For example, the materials and pharmaceutical industries make a habit of filing patent applications).
I expect that new advances in food will soon be viewed appropriately as “technology.” Notably, Wired Magazine has already displayed some forward thinking by placing “cooking” in the same sentence as “science.” That intellectual leap will lead to tremendous opportunities as people in the industry make the transition from just cooking to inventing.
Patenting a new food technology would give the inventor the exclusive right to make, use, or sell the innovative food. Patenting a food would allow the inventor to demand royalties from copyists who wish to utilize the invention.
Thousands of patents have been issued to protect various aspects of food and food products. Patents also protect methods of manufacturing food. Several weeks ago, our firm posted a short article about patenting food. We noted that foods could be patented as “compositions of matter.” Since publishing that article, we have received some questions about whether products like Coca-Cola are protected with patents. We’ve also been asked about whether it is possible to patent flavors and tastes. Below, we provide some brief remarks.
Coca-Cola Uses Trade Secrets to Protect its Formula
Coke keeps it’s recipe a trade secret
Coca-Cola protects its Classic beverage formula by keeping it a trade secret. As such, Coca-Cola illustrates an alternative to patent protection—trade secret. Coca-Cola purposefully avoids disclosing its formula, relying on the assumption that no one can copy it without being given the secret recipe. Visitors to the Coca-Cola factory in Atlanta, Georgia are shown a massive security vault that supposedly holds the secret recipe for Coca-Cola.
Keeping their recipe a trade secret only protects the recipe to the extent that other companies cannot figure it out. The weakness to this approach is that trade secrets are only as good as competitor’s analytical techniques are bad. And, analytical techniques are improving every day.
Patents provide a different sort of protection. Rather than relying on secrecy, patents reward inventors for disclosing the invention. In exchange for disclosing the invention in a patent application, the government rewards the inventor with the exclusive right to make, use, or sell the invention for a period of time. Two key differences are as follows:
a patent gives the inventor the right to exclude others from using the idea where as the trade secret provides no such right; and
a patent only lasts for a limited time, whereas a trade secret can exist indefinitely.
Accordingly, a person inventing a new flavor or taste profile must choose between patenting the invention versus keeping it as a trade secret. That decision would probably turn on how difficult the flavor is to figure out without knowing the secret. As pointed out above, analytical techniques have improved dramatically since the days Coca-Cola was invented. With the benefit of today’s technology, it would be possible to identify minuscule amounts of a secret ingredient by using combinations of chromatography and mass spectrometry. Although a copyist may not hit on the exact same recipe, they could get close enough to bring the battle to the marketplace. Patents provide a way to keep your competitors far far away.
Patenting Flavors Provides Advantages
For an inventor who has invented a new flavor, the patent system may provide significant advantages. For example, the inventor should be able to describe how the new flavor differs from others that have come before it. Here, it is particularly advantageous to look at the differences in molecular composition because those differences offer incredible opportunities for drawing quantifiable distinctions from the prior art. With those differences in mind, the inventor could draft patent claims, which define the inventor’s broader contribution. (Not just the exact commercial product but also knock off products).
Drafting claims that leverage underlying differences in molecular composition could prevent copyists from making products that are similar, thereby offering a broader ranger of protection. This illustrates the greatest advantages of patents versus trade secrets: Patenting the new flavor invention provides the inventor with the right to exclude competitors; whereas keeping the invention a secret relies on the inventor’s hoping that no one figures out the secret sauce.