World of beer craft: Are Carlsberg and Heineken’s barley patents legal?

“We now need legal certainty. Carlsberg and Heineken are trying to enhance their market position to the disadvantage of consumers, farmers and other breweries,” said Erling Frederiksen from Friends of the Earth in Denmark (NOAH), a European branch of the world’s largest grassroots environmental network. “These patents are not based on real inventions but on intentional abuse of patent law. Therefore, they have to be revoked.”

What’s Frederiksen on about?

Well, several civil society organizations have filed oppositions against European patents jointly owned by Carlsberg and Heineken. The patents, EP2384110 and EP2373154, were granted by the European Patent Office (EPO) in 2016. They cover barley plants derived from conventional breeding, their usage in brewing, as well as the beer brewed thereof. The opponents strongly believe that these patents violate patent law, which prohibits patents on conventional breeding. Only recently, the EU Commission confirmed that conventional breeding as well as plants and animals derived thereof cannot be patented.

The NGO consortium No Patents on Seeds (which is supported by the likes of NOAH above and a ton of other groups from Green Peace to Public Eye) is trying to overturn a biotech patent that Carlsberg holds on barley that contains low levels of trans-2-nonenal (TN) caused by two mutated genes. Patents provide limited monopoly rights to inventors; the question in this case is whether or not the barley is actually an invention. Generally speaking, patents cannot be granted for things that naturally occur in nature or for abstract ideas. You can neither patent the law of gravity nor a blade of grass just because you discovered it.

Biotech patents represent a difficult area of patent law because it’s hard to tell where nature ends and invention begins. In this case, the plaintiffs (No Patents on Seeds) claim that Carlsburg did not actively create the mutated barley in this case because the method by which they obtained it was basically trial and error. Carlsberg tried to identify suitable barely candidates, then induced random mutations, identifying the plants that they wanted from the results.

The question of whether or not this approach constitutes an “invention” was previously a gray area in European law: however, a clarification issued by the EU a couple of months ago seemed to indicate that random mutagenesis does not constitute “genetic engineering” in the same way that the specific insertion of genes do. Based on the EU’s explanatory statement, the plaintiffs are asking for the barley patent to be overturned. Note that although the mutations are random, my understanding is that they are still being induced by Carlsberg. It’s not like they’re just throwing seeds out and waiting — they’re actively fostering mutations — but don’t yet know which mutations will be useful for them.

This type of case is among a series of highly contentious global biotech patent cases. The Myriad case is one of the most prominent ones in the past few years, where the U.S. Supreme Court (and elsewhere) argued the validity of a roughy analogous patent over a test for identifying the BRCA genes. Rather than testing barley, a lab tested to see if the mutations in a pair of BRCA genes meant that people — mainly women — were at high risk of breast cancer. This is the test Angelina Jolie took before having her double mastectomy. The U.S. Supreme Court, in a surprise ruling, overturned the patent saying that simply having a test to identify the gene was not an invention and thus was not patentable. This was followed by a similar ruling in Australia. So, while barley may seem trivial, the impact such a patent could have are far-reaching, and the Carlsberg case will be an important trial for public policy.

Nichole “Nitch” Richardson is a Paris-based craft beer consultant with over 10 years of experience bringing good beer into the lives of good people. Host of her own weekly beer video series, @TastingNitch brings world beer news, reviews and personal insights into how to live deliciously. Her top five emojis are ❤︎😎💪🏼🍻🙊