Are Carlsberg’s new beer patents controversial? Probably …

This year, the European Patent Office (EPO) granted three new patents to Carlsberg (EP2384110, EP2373154 and EP2575433) relating, broadly, to the harvest of kernels from barley plants, the process for brewing and the drinks produced by these methods. European patent law prohibits patents on plant varieties and breeding; however, notwithstanding these prohibitions, the patents have been granted by the EPO.

The European Commission has stated that plants and animals resulting from essentially biological breeding should not be patented. Accordingly, there have been calls for Carlsberg to voluntarily relinquish the three patents on the basis that there should be no patents on beer and brewing barley since the cultivation of plants and beer brewing stems from a tradition that is centuries old. There have also been calls for European governments to bring the EPO under political control.

It remains to be seen whether the EPO will respond to statements made by the European Commission and the European Parliament and whether Carlsberg will respond to calls to voluntarily relinquish the patents.

For clients in the food and beverage industry, the Carlsberg saga is noteworthy. The controversy surrounding the Carlsberg patents demonstrates that it can be extremely difficult, costly and time-consuming to obtain such patents. It is also worth consider the other forms of intellectual property that are particularly important to clients in the food and beverage industry, including:

Copyright

Copyright does not protect concepts and, accordingly, would not protect a culinary idea (for example). However, copyright protects, amongst other things, artistic and literary works and may therefore be applicable to materials such as blog posts and other online content, printed materials such as cookbooks or nutritional guides, and artwork on packaging and promotional materials. Copyright may, depending on all the circumstances, also protect culinary artistic works, such as cake designs.

Trade marks

Trade marks are rights that grant the owner a monopoly right to use a certain word, phrase, logo, shape or colour in respect of the goods and/or services for which the trade marks have been registered. Accordingly, trade marks may be used to protect, for example, the name of a food product, a logo relating to particular restaurant or chef, or the shape of a bottle or other packaging.

Design rights

Registered and unregistered design rights are available both at UK and an EU level and, broadly, protect the shape of an object (or, to put it another way, the ‘look and feel’ of an object). However, design rights do not protect the functionality of the object. Accordingly, design rights may also be used to protect, for example, the shape of a bottle or other packaging.

Confidential information

Confidential information is not an ‘intellectual property right’ in the traditional sense. There is no statutory basis for confidential information as there is for patent rights, copyright, trade mark rights and design rights. The basis of protection is the common law and/or contract law and the information will be protected as long as the information remains secret and the person with whom the information is shared knows that it is to remain secret. Accordingly, confidential information is often the only or main form of protection for sensitive materials or information (such as trade secrets, know how, methods, processes and secret recipes), which cannot be protected by the substantive intellectual property rights discussed above. For example, Coca Cola’s ‘secret recipe’ is not protected by a patent or by copyright, but it remains protected as one of the worlds’ best kept trade secrets.

Briffa advises a broad range of clients in the food and beverage industry on all aspects of intellectual property law and practice, including non-contentious matters such as filing for trade mark and design protection and contentious matters such as advising on infringement of intellectual property rights. If you would like to meet with one of our specialist intellectual property lawyers for a free preliminary consultation and assessment, please do not hesitate to get in touch.