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	FORUM ON BEER, HOMEBREWING, AND RELATED ISSUES
		Digest Janitor: pbabcock at hbd.org


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Contents:
  RE: Yeast Patents ("Mike Sharp")
  Re: Yeast Patents (donniestyle)
  Yeast and Biopiracy (Alexandre Enkerli)


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Date: Wed, 5 Aug 2009 16:56:21 -0700
From: "Mike Sharp" <rdcpro at hotmail.com>
Subject: RE: Yeast Patents

Alexandre Enkerli posts about: Patenting Yeast Strains?

There are plenty of patents on Yeast strains, going back to 1873 when Louis
Pasteur was awarded US Patent 141072.  He  made the claim of "yeast, free of
organic germs of disease, as a living organism."   Even in this early case,
Pasteur was using the yeast to make beer.

Some of the more recent examples of yeast patents make claims to be
genetically engineered, but some, such as US Patent 5543161 don't appear to
state how the strain was produced.  For a plant patent it might matter, but
I don't think that's the case for a Utility patent.  In any case, Diamond v.
Chakrabarty in 1980 confirmed that living organisms can be patented.

What's interesting about this particular case is how he seems to be making
the claims.  I've examined a few yeast patents, and it seems like for the
most part their claims are based on identifying the strain via its
properties, not by its gene sequence.  The exceptions are the genetically
modified yeast strains, but even they don't present a complete sequence,
just the genes responsible for the effect the patent is trying to protect.
See, for example, US Patent 6117649.  

I'm wondering if gene sequences are *ever* used for identifying a particular
strain for IP purposes, and if so, how far off do you have to be to be
unique (and therefore able to patent the new strain)?  It seems like a minor
mutation would remove any patent claims on the new strain, if it was based
solely on gene sequence, even though it might have the same essential
properties.  But when the applicant makes claims on the properties,
presumably well enough to uniquely classify it, then they have a broader
grip on the strain.  

As far as using a plant patent, I'm not sure how anyone can argue yeast is a
plant...According to the USPTO:

Plant Patent
Issued for a new and distinct, invented
or discovered asexually reproduced plant including
cultivated sports, mutants, hybrids, and newly found
seedlings, other than a tuber propagated plant or a
plant found in an uncultivated state, it permits its
owner to exclude others from making, using, or selling
the plant for a period of up to twenty years from the
date of patent application filing.  Plant patents
are not subject to the payment of maintenance fees.

I read that to mean a "discovered" plant cannot be patented, because it must
be cultivated.  Yet I see yeast patents have been issued.  I don't think
what Cano discovered could be considered a "newly found seedling".

The courts have also said that a plant found in the wild is not patentable,
so in Cano's case, I'm suspicious of the patentability.  On the other hand,
there is that Louis Pasteur patent...

Recently India passed a law allowing microorganisms to be patented, but
there is still some discussion about what a microorganism really is, as it
relates to IP law.

More information can be found here:

http://www.moffitt.org/Site.aspx?spid=4E99107C06964E94A987F7D8BB8D48B4

Regards,
Mike Sharp



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Date: Thu, 6 Aug 2009 09:20:43 -0500 (CDT)
From: donniestyle at directlink.net
Subject: Re: Yeast Patents

Not an authority, but it seems as a home brewer, one can do as they wish
with the yeast purchased in a bottle of beer.  Now that you point out the
yeast is there, I think there will be a number of home brewers doing so. 
Where can I get some of that brew? ;^)

Don



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Date: Thu, 6 Aug 2009 12:22:35 -0400
From: Alexandre Enkerli <enkerli at gmail.com>
Subject: Yeast and Biopiracy

Darrell, just across the border in Plattsburgh, gives us a reference
on biopiracy.
Thanks for that reference!

Actually, biopiracy was on my mind as I was reading the Wired piece
about Cano. I watched the following French documentary 2.5 years ago
and it brought home several points about the issues surrounding
patents, copyright, and trademark on living organisms:
http://is.gd/25705

We had a discussion about this through our brewclub's mailing-list and
our club's resident dairy farmer was telling us about some of those
issues from his perspective (he's now moved to a fully organic
production, AFAIK). Like Monsanto's control on how some crops may be
used because they had engineered the GM seeds.
Fascinating stuff.

Patents on yeast strains may seem like a relatively trivial matter, by
comparison to the most problematic cases of biopiracy. But yeast is
also tremendously important and it's as good as any topic for a
discussion of openness in experimentation and research.
What troubles me personally about Cano's protection of that yeast
strain isn't that, for 20 years, other craft breweries won't be able
to release beer fermented with it. It's the restriction on yeast
culturing and experimentation. In other words, it's not about Dogfish
Head having access to this strain to brew an Amber Ale. It's about Raj
Apte and Peter Tonsmeire playing with it. It's about the precedent
that can be set. It's about the disconnect between lobby groups like
WIPO and regular folks like us.
Not that it's the end of the world. But this is an issue which
deserves much more consideration than it's getting. Who knows, it
might be a significant factor in finding solutions to the current
ecological crisis.

Ale-X in Laval
ARC [888km, 62.5]
http://blog.informalethnographer.com/


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