Patents are one possible tool available to a company to secure rights in its intellectual property.  There are three types of patentable subject matter: useful articles, ornamental articles, and plants:

  1. Utility patents are available to novel, non-obvious, and useful inventions. Utility patents have a lifespan of up to 20 years from the application’s priority date. These types of patents are probably irrelevant for most breweries, distilleries and wineries, but some possible opportunities may exist for recipes (unlikely), brewing/distilling/winemaking processes (unlikely), and brewing machinery.
  2. Design patents are available for the ornamental features of a product’s design or packaging. Design patents have a lifespan of up to 14 years from the patent’s date of issuance. This is probably the most relevant type of patent for a brewery/distillery/ winery, and may cover the company’s bottle shape or other packaging.
  3. Plants are eligible for patenting if they are non-tuberous and capable of being asexually reproduced. Plant patents have a lifespan of up to 14 years from the patent’s registration date.

The United States Patent & Trademark Office (USPTO) facilitates US patent registrations. Patent filing fees are expensive and include basic filing fees, search fees, and examination fees. Filing fees vary according to an applicant’s size (if a company), and income, and typically run between $500 and thousands of dollars.   The patent process tends to be relatively slow, and registration usually takes about a year for design patent applications, and multiple years for utility patents.

Patent protection, like trademark protection, is country specific, and registration in other foreign countries is necessary to obtain rights in these countries. Companies can initiate utility patent filings at as many as 148 countries at once through the Patent Cooperation Treaty (PCT).  After a PCT application is filed, a company will have to hire a foreign associate in each country it wishes to pursue patent registration in, in order to move forward with the registration process in that country.

A company should put symbols on their patented products to tell competitors that they are protected by registered patents or patents pending (e.g., “Pat. 9,000,000” or “Patent Pending”).  Failure to do so may mean being disqualified from seeking certain damages in a patent infringement lawsuit.

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