Law and Tech A weblog on Law and Technology


BrewHaHa over beer label

Flying Dog Brewery (Frederick, MD) has filed a lawsuit against the Michigan Liquor Control Commission the U.S. District Court in Michigan's Western District.   The suit involves the commission's November 2009 decision to deny an application by the brewery to sell its 'Raging Bitch' beer in Michigan due to the allegedly provocative nature of the label.

Flying Dog argues that the commission's decision is unconstitutional and violates the brewery's first amendment rights to free speech.  The brewery is asking the court to mandate the issuance of a sales license in Michigan for Raging Bitch and is seeking unspecified compensatory damages from the commissioners as well as attorney fees.

In their complaint, the plaintiffs state,  "[b]eer bottles should be regulated not by the expression of their labels, but by the character of their content...[r]egrettably, the Michigan Liquor Control Commission and its members have taken it upon themselves to control not merely alcoholic beverages, but speech as well."

The commission is given the authority by the Michigan legislature to control all alcoholic beverage traffic in the state and to reject any beer label submitted for registration that is deemed to promote racism, sexism, intemperance or intoxication, or to be detrimental to the health, safety or welfare of the general public.

Flying Dog applied for a license to sell Raging Bitch, the company’s 20th anniversary commemorative beer, in the state of Michigan in September 2009. According to the suit, the commission looked at the proposed label by Flying Dog and "did not feel it was appropriate for distribution and sale in Michigan."

The Raging Bitch label's artwork was designed by British artist Ralph Steadman, who works with Flying Dog to produce illustrations for the brewery's corporate images.  The Raging Bitch label depicts drawing of a female dog and reads, in part:

"Two inflammatory words ... one wild drink. Nectar imprisoned in a bottle. Let it out. It is cruel to keep a wild animal locked up. Uncap it. Release it ... stand back!! Wallow in its golden glow in a glass beneath a white foaming head. Remember, enjoying a RAGING BITCH, unleashed, untamed, unbridled—and in heat—is pure GONZO!! It has taken 20 years to get from there to here. Enjoy!" — Ralph Steadman

Flying Dog created Raging Bitch, a Belgian-Style India Pale Ale, to celebrate the brewery’s 20th anniversary in 2010.   In addition to the controversy in Michigan, sales of the beer have also been banned in New Hampshire.  (Another Flying Dog beer, Road Dog Porter, is banned in Texas.)

Flying Dog CEO Jim Caruso and Alan Gura (an attorney with Gura & Possessky (Alexandria, Va), the firm representing the brewery) announced the filing of the case at Crunchy’s, a craft beer pub near the Michigan State University campus in East Lansing.




Organic Farmers File Suit Against Monsanto

The Public Patent Foundation (PUBPAT) filed suit on Tuesday, Marc. 29, against the biotech giant Monsanto as  a preemptive measure to protect farmers from patent infringement lawsuits.   The suit was filed in the federal district court in Manhattan on behalf of 60 family farmers, seed businesses and organic agricultural organizations. 

The case, Organic Seed Growers & Trade Association, et al. v. Monsanto is intended to protect farmers from legal action by Monsanto when their crops are contaminated by Monsanto's patented, genetically modified (GM) seed.  According to the law,  Monsanto is entitled to sue farmers  if its GM seeds are found on a farm that did not purchase a license for the seed from Monsanto, even if the crops were contaminated from seeds drifting over accidentally or though natural cross-pollination.

Once in the environment, GM seeds can potentially contaminate and destroy the organic seed for similar crops.  Organic canola has become seriously threatened as a result of contamination from GM canola.  Because Monsanto is developing genetically modified seed for many other crops, such as corn, soybeans, cotton, sugar beets and alfalfa, many fear that the future of agriculture, and thus the future of the food supply,  are at risk.

Dan Ravicher, PUBPAT's Executive Director, Lecturer of Law at Benjamin N. Cardozo School of Law in New York, and the plaintiffs' lead attorney in the case stated that PUBPAT is asking the court to declare that if organic farmers are contaminated by Monsanto's GM seed, they should not be liable for patent infringement.  PUBPAT's filing argues that Monsanto's patents on genetically modified seed are invalid because they don't meet the “usefulness” requirement of patent law, and cites evidence that genetically modified seeds have negative economic and health effects.

“Some say transgenic seed can coexist with organic seed, but history tells us that's not possible, and it's actually in Monsanto's financial interest to eliminate organic seed so that they can have a total monopoly over our food supply,” said Ravicher.  “Monsanto is the same chemical company that previously brought us Agent Orange, DDT, PCB's and other toxins, which they said were safe, but we know are not.  Now Monsanto says transgenic seed is safe, but evidence clearly shows it is not.”

Monsanto, in a statement on its blog called the suit's allegations "false, misleading, and deceptive," and went on to say,  "[i]t has never been, nor will it be Monsanto policy to exercise its patent rights where trace amounts of our patented seed or traits are present in farmer’s fields as a result of inadvertent means."

Ravicher said, however, "[i]t seems quite perverse that an organic farmer contaminated by transgenic seed could be accused of patent infringement, but Monsanto has made such accusations before and is notorious for having sued hundreds of farmers for patent infringement, so we had to act to protect the interests of our clients.”



Patenting the Google Doodle?

The Christian Science Monitor has an article informing its readers about a new patent out of the Patent Office: "Systems and methods for enticing users to access a web site" describing the Google Doodle.

Google Doodle for National Thai Elephant Day

Google Doodle for National Thai Elephant Day

The article quotes Matt Rosoff from Business Insider:

If you needed any more proof that the U.S. patent system is totally out of control, here it is: after ten years of lobbying, Google was granted a patent on Google Doodles this morning.

But Mr. Rosoff should rest easily.  The title of a patent or the invention that it is based on does not control the exclusive rights of a patent.  That would be the claims.  An infringer would have to have every element in the claim in their infringing product/process in order to be liable for infringement.  The Google patent has only 4 claims, only one of them is an independent claim, the first of which is:
1. A non-transitory computer-readable medium that stores instructions executable by one or more processors to perform a method for attracting users to a web page, comprising:

  • instructions for creating a special event logo by modifying a standard company logo for a special event, where the instructions for creating the special event logo includes instructions for modifying the standard company logo with one or more animated images;
  • instructions for associating a link or search results with the special event logo, the link identifying a document relating to the special event, the search results relating to the special event; instructions for uploading the special event logo to the web page;
  • instructions for receiving a user selection of the special event logo; and
  • instructions for providing the document relating to the special event or the search results relating to the special event based on the user selection.

So, this is not just about changing logos.  The logo must also be a link or link to search results.  So this isn't just about changing fun logos depending on the special event or day but has to be done by making the logo a link to a document relating to the special event or search results with the special event.  The image has to be animated.  The image has to be a modification of a standard company logo.  The reason this is so specific is most likely because they needed it to be to get around prior art.  At the same time, it is easy to design around.  Looking at the file wrapper, you can see that the claims as filed were numerous and broad and they got whittled away during the long prosecution including a trip to the Board of Patent Appeals and Interferences.  This does not show a system that will allow anything through.

What is interesting is the Patent Term Adjustment on the Doodle Patent: 2618 days.  That shows an incredible amount of delay on the application.  Over 7 years, with a pendency of almost 10 years.  That's certainly a sign of a broken patent system.


Invention of the Day: Fried Beer

[Ed Note: Yeah, it seems like I talk about beer a lot.  It just seems like a fun topic.]

Fried Beer

Fried Beer

As the Dallas News reports:

Booze is generating a buzz for the State Fair of Texas, as fried-alcohol dishes made the list of top new fair foods announced Wednesday.

. . .

Fried Beer is a beer-filled pretzel-like dough pocket that's shaped like ravioli. Take a bite and the beer pours out.

What's even more interesting is that in the video that accompanies the article Mark Zable, the inventor, says that he patented the process of making the fried beer and trademarked the name "fried beer."

What struck me first:  doesn't "fried beer" seem a little too descriptive, for trademark purposes, of the product (fried beer) to obtain a trademark on the principal register?  Yup.  According to filings with the PTO Zable's not even going for the principal register instead starting with the supplemental register in international class 30 "Frozen foods, namely, grain and bread based appetizers, hors d'oeuvres, and canapés."  This application has not been assigned to an examining attorney yet.

Second, in the video he mentions "you know what, I didn't figure it out, my four and a half year old did."  Meaning his four and a half year old figured out the secret process to fry the beer; "and it works."  Since this application appears to be recently filed and not published, I can't tell who the listed inventors are but if the four year old is not listed, is there a § 102(f) problem?  And if a four and a half year old came up with it, is there an obviousness problem?

So, if you're headed to the Texas State Fair be sure to try the fried beer.


Organic Hops and the National List

HopsSo, as I previously posted I gave a presentation on beer law to the Food Law course at Franklin Pierce.  Today, I learned something new that I would have loved to include in my presentation had I known about it.

Now, I have not fully looked into this topic but I was reading a facebook note from an organic hop grower in New Hampshire (that I also learned just got TTB approval to start a brewery) Misty Mountain Farm (I can only assume it is based on the Led Zeppelin song "Misty Mountain Hop").  Apparently Hops are on the National List in 7 C.F.R. § 205.606:

Only the following nonorganically produced agricultural products may be used as ingredients in or on processed products labeled as “organic,” only in accordance with any restrictions specified in this section, and only when the product is not commercially available in organic form.

Hops appear as (k) on the list!

What is interesting is that Peak Organic was the brewery to file the petition back in 2007 asking for Hops inclusion on the list because it is not commercially available in organic form.  In the petition Peak Organic said that they buy organic hops of a particular variety when available but organic hops of the particular varieties needed are not always available organically grown. The recommendation of the  National Organic Standards Board (NOSB) Committee was to add it onto the list.  And there it appears.

But, this past December, the American Organic Hop Grower Association (AOHGA) filed a petition to the NOSB asking for the removal of Hops from the list.

It seems that the number of styles and availability of organically grown hops has increased.  I am all for removing hops from the national list because buyers of organic beer expect their beers to be brewed with organic hops as it is such a vital ingredient in beer.

In it's public comments the AOHGA points out:

The basic question to ask is this – how many varieties of hops must be available before variety is no longer a reason for organic hops to be considered commercially unavailable? If the criteria to remove an ingredient from the list is that every variety of the crop is commercially available, then hops (along with chia) are the only crops that have been held to such a high standard.

These are the only two crops on the 606 National List, everything else on the list is a derivative ingredient. Very few crops, if any, have every variety commercially available in an organic form.

If there are not enough varieties available organically today, then how many more are needed? Five, ten? What is the number?

Every year, new varieties are showing up in the non-organic marketplace. Are these required to be grown organically before hops can be removed from the list? If so, we are dealing with a moving goal post.

Certifiers will not make this determination of the number of varieties needed, and even if they did, it would lead to different standards across the industry. We need a consistent standard. This is a question only the NOSB can answer by addressing our petition.

It seems that with patented hops, that there could possibly always be a variety or two that are not grown organically—but should that matter?  Guess I'll have to do more tasting research.

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