Skip to main content

Patented Musings

A couple of months ago, some of the beer personalities I follow on Facebook shared and urged to sign this petition against Patents on Beer and Barley. The text raised a couple red flags that made me doubt the claims of the initiators the petition and prompted me to look further.

The first that thing bothered me was the use of “greedy corporations” to describe Heineken and Carlsberg (H&C), the owners of the patents. Regardless of what you or I may think about these companies and other large corporations, I’ve come to associate this language with people who will not appeal to rational and fact-based arguments to get the public on their side, but to our emotions and natural confirmation bias. That wouldn’t have been such a problem, if the whole text of the petition wasn’t so disingenuous. They say:
Barley, brewing and beer are all old and well known traditions, which anybody can use. Nevertheless the European Patent Office (EPO) has granted patents to Heineken and Carlsberg for regularly bred barley. With the patent these transnational corporations own the barley from the seed to the pint of beer.
The truth is, however, that H&C haven’t patented barley or beer as whole, as the text seems to imply, but a very specific cultivar of the former that they have developed, and the products made from it.

Food or crop patents are nothing new, they’ve been around since the 1930s, well before GMOs were invented, and are quite normal, even in the brewing industry. Most of the new hop breeds that have become so popular and trendy are either patented or trademarked, and I don’t see anyone complaining about that.

Some years ago I visited the Hop Research Institute in Žatec, or, to use the company name as is listed in the appropriate Business Register, Chmelařský institut s.r.o. At the time, Kazbek was the latest cultivar they had developed. If I recall correctly, it’s a cross-breed of ŽPČ (Saaz, for friends) and a wild strain from the Caucasus or the Urals that took years to develop. That is the reason why I’ve no problem with patents on crops: it takes a lot of time, effort, and money to develop them and I think it’s fair and reasonable that companies will want a return on that investment. Patents are a way to at least guarantee that nobody will freeload on their work for the duration of the patent, which is not permanent.

In the case of the H&C barley, it will be like Kazbek, Mosaic or Citra, just another cultivar on the market. There is nothing preventing farmers, maltsters and brewers to keep on growing, processing and brewing with the many other cultivars available. Czech malthouses, for instance, work with up to nine cultivars every season, which they process separately as each will produce malt with different properties. If we don’t have any problem with patented and trademarked hops, why should it be any different with the barley?

The most contentious issue begins with the way the new cultivar was developed: random mutagenesis, a genetic engineering technique used by both conventional and organic farming, which is a grey area in patent law. Some people believe that, since the mutation could eventually occur naturally, it should not be eligible for a patent. But, as this page explains, H&C actively fostered the mutations; they didn’t throw seeds around to see what would happen. It could be said, therefore, that it is an invention that should be protected by a patent if its inventor so wishes.

But that’s not the end of it. The patents don’t only grant H&C a monopoly only on the barley and the products derived from it, but also on the trait that makes that barley unique, a reduced lipoxygenase activity. Provided this is correct, it means that if someone else developed, through different means, a cultivar with the same traits, they would have to pay H&C a license, likewise if that mutation appeared naturally and someone wanted to commercialise the seeds.

I’m on the fence here, I can see the merits of both sides of the argument, but I don’t have enough information to form an opinion one way or another. I would welcome it, of course.

But that doesn’t seem to be the case here, Carslberg has issued a statement claiming that “the patents are not for the barley but for the techniques used in their development”. And yet, patent EP 2384110 A2 is for Barley with reduced lipoxygenase activity and beverage prepared therefrom, and patent EP 2373154 B1 is for Barley and malt-derived beverages with low dimethyl sulfide level. So, I don’t know.

In any case, this is old news. The patents were granted last year and the petition is still a fairly long way from the 200,000 signature threshold, which, in my opinion, serves them right.

Na Zdraví!