This is South Africa, home of rooibos and indeed, the only place where it grows naturally (or even at all?) So the question “Can I put rooibos in my beer?” seems a silly one. The answer though, depends on what you mean by “can”. Are you physically able to chuck some rooibos into the boil, or throw a bit into the secondary fermenter? I’m sure you are – the stuff is easy to get hold of and adding some to a brew isn’t too tricky. But it by “can” you’re asking for permission, then the answer might just be “no”.
This is rooibos. It is not a beer ingredient, apparently
There was a bit of Twitter chatter last week about this article on IOL news. Could it be true that a company had patented the act of using rooibos in any alcoholic beverage? Or was it the process that was patented rather than the ingredient. I contacted Red Dawn IP Holdings to clarify.
The initial response I got was confusing, but after trying to understand the patent (it’s here, if you care to read and decipher) I got the following statement from Trevor Strydom of Audacia, one of the wineries that owns Red Dawn (the other is KWV):
“If any brewery is interested in brewing commercial beer using the patented recipes and processes in South Africa or in any of the other 83 countries where we have pending patent applications worldwide, we would be only be too happy to meet with them to discuss patent licensing.
Licensing will occur taking into account that there is currently an ‘explosion’ of craft breweries springing up all over South Africa, as has already occurred in many other countries throughout the world. History and hindsight showing that most of them will not be financially viable over the medium to long term. We will eventually have a shakeout, as has already occurred in other countries, with a few regionally based well run craft breweries surviving. These are the Breweries we are interested in licensing.
It is for this reason that we would like to meet all potential “Licensees” on a ‘face to face’ basis in order to engage them in meaningful discussions around their business strategy and business plan. We will also need to understand each other’s business ethos, ethics and values to ensure we can work together. From our side we would want to get to grips with the Brewers ability to produce a high standard of licensed quality products on a constant basis.
In summary our approach is to only grant licenses to Breweries who demonstrate that they have the ability to produce and distribute top quality ‘licensed’ products on a consistent basis.”
The patent also covers honeybush and for the record, Stellenbrau, who are brewing Governor’s Red Lager (a rooibos infused lager) are brewing under licence from Red Dawn – it’s not them that’s stopping any other brewers from joining the red party. Considering they published this on their blog in June, I can understand why people were confused. The line “We believe so much in the Governor that we went to the extent of patenting the recipe to ensure that we will be pushing him to new boundaries amongst South Africans and beyond” is pretty misleading and turns out to be completely false. It’s not Stellenbrau that hold the patent, nor is the patent for a specific recipe.
Rooibos growing near Clanwilliam
The thought occurs that there are already a few breweries utilising rooibos in their beers and were doing so before the patent was filed. Do they have to stop or pay for a licence to brew the beers they were already brewing? It seems likely. Homebrewers though, can continue chucking all the fynbos that want to in their brew.
My two cents: South African microbrewers are trying to do something different something that sets their beers aside from international styles by adding the likes of buchu and rooibos to their brews. Is it necessary to prohibit the use of certain ingredients in the beer? Is it really to preserve the good name of rooibos? Or is it, perhaps, to make some cash out of a small, burgeoning industry of passionate brewers struggling to make a name in South Africa… ?
What are your thoughts?
There are two separate issues that need to be considered: the trademark and the patent. They have trademarked ‘rooibos tea’ – sneaky, but clever. So my understanding is that if you want to sell a beer that you describe as ‘rooibos beer’ you must pay royalties for that. Is that not what Stellenbrau are doing?
You can’t patent an idea, you can only patent a process or a product (and maybe other things). So I don’t understand how they can patent the concept/idea of using rooibos in beer? But perhaps they can.
Also, you can’t patent something that is not new…are red dawn the first people to do this? Darling Brew used honeybush in Dragon Tail a while back..was the patent pending then?
I thought the patent is still pending? I am interested to see if they are actually granted the patent.
And no, I don’t think this is about protecting the good reputation of rooibos…
Smells like a cash grab to me.
If they offer these “liceses” free of charge to microbreweries then I am happy. If they force the small guy to pay up if he makes a killer craft beer from rooibos then it proves that this is just a money making fiasco and I think it is a load of BS!
Thanks Lucy for this great article. My understanding is that use of the name ”Rooibos” is already protected and restricted for use within South Africa as its a truly African name, so I was very shocked to learn of the patent. I believe that for one brewer to restrict another brewer from making their beers using this wonderful ingredient is against Africanism (uBuntu) and will further restricts the growth of the overall industry. I was greatly shocked and disappointed at the lengths some people would go all in the name of making a quick buck. Small breweries are already trying to compete against giants and are fighting for their market share, now for us to fight with each other over use of an ingredient is so petty. Where would it all end, everyone could might as well patent their recipes then where would all the fun and craft element be? Let us as consumers decide who makes the best Rooibos bee
Bullocks. Can one patent putting malt or hops into beer? Or salt and pepper into food? Of course not. Patents are very specific, and while this group may have constraints on trademarked names, they cannot prevent a brewer from putting rooibos into beer and selling it. If you want to know what their patented process is and use it, then you’d need to pay royalties. While the court is still out on whether or not rooibos and beer actually taste good combined, I wouldn’t be concerned about this group’s scare tactics. If you are keen to produce a commercial rooibos beer, get yourself a good commercial patent attorney and move forward being armed with a real understanding of SA commercial law.
Red Dawn’s move here is curious. It does seem to be a blatant cash grab in an industry that is considered “hot” right now. So instead of helping to grow a small niche segment, they’re putting up restrictions and trying to elbow out people who don’t want to pay them licencing fees. It’s really not how you do craft guys. Artisans share with, learn from, and promote each other to bake a bigger pie, not squabble over the (already) smaller slices.
I think the technical term for this sort of thing is a “Dick Move.”
Adding different ingredients to beer is what craft is all about. Think about cloves, orange peel, pumpkin, chillies, chocolate, coffee, the list goes on. I was shocked and angry to see that they patented the use of rooibos as an ingredient. Patenting a specific recipe is fine with me but patenting the use of an ingredient that a lot of other brewers already use is against craft. It is limiting people to perform their craft. It is trying to control craft. It is against everything craft is about. I will not support them, will not drink their wine or beer and I believe a lot of true craft supporters will do the same.
The trick with patents is that you cannot patent something “already in the public domain”.
Based on the comments above and recipes I have seen in the past the concept of Rooibos in a beer is in itself not new and hence not patentable. What they do seem to have applied for a patent on is certain recipes and processes. These in themselves may not be patentable if, for example, the patent simply states “add Rooibos to boil” as this would have been done already.
I guess we wait and see what the patent says once completed and published. As long as you don’t use the stated recipe and/or process you won’t infringe. If you infringe the patent this may not be a problem if the patent itself is not valid based on the claims in the patent already being known to the public and hence “prior art”.
By the way, an interesting aspect of RSA patent law is that the onus falls on the patent owner to prove infringement.
Thanks for shedding some light on the legal side of things Brendan 🙂
It’s without any doubt a cash grab. The two companies don’t make beer or cider. I personally wouldn’t use rooibos in my beer (I don’t like the taste) but I will stand against them. Camelthorn brewery made a wonderful beer at one stage, they replaced the hops with rooibos.
I am sure the patent is on the brewing process and recipe used only. That is what I understood when talking to Stellenbrau. Red Dawn has applied for similar patents for using rooibos in other products as well like wine etc. I hope it will all mellow out and people will enjoy good rooibos infused products and make some of their own based on their own recipes and brewing processes. Just imagine an American country getting a patent for the use of Pumpkin in beers, the concept is just ridiculous.
Why ruin a perfectly good beer by adding rooibos to it? Disgusting stuff
Hehe, well that’s a whole other debate. Maybe it’s best used to cover up a brewing faux pas??
Maybe – but it’s still a bad idea 🙂
Hi again,
I had a meeting with a patent attorney this morning and showed him this blog.
He basically says that you cannot patent a recipe, ie: simply combining known ingredients. A valid patent application would therefore probably lie in the method/process around the brewing, having said this the method would need to put the ingredients through some process that changes how they react/combine in a unique and non-obvious way.
His opinion was that, depending on the exact claims, any interested party would have a strong case to approch the patent office to have this patent revoked. To him this sounded like ‘fun’, to me not so much. If anyone feels strongly enough to engage on a crusade on this issue you could email me and I can forward the attorney’s details – I think that he would be reasonable regarding any costs as the case piqued his interest
Wow Brendan – that’s awesome. I’ll be sure to pass on your email address should any brewers get in touch re rooibos issues!
Thanks Brendan for taking this up – good work! I really wonder what these characters are up to then. I think its all about the trademark and MILKING the industry.
Ps – Lucy how much truth is there in this comment: “History and hindsight showing that most of them will not be financially viable over the medium to long term. We will eventually have a shakeout, as has already occurred in other countries, with a few regionally based well run craft breweries surviving. These are the Breweries we are interested in licensing.”
Its not like that in the States yet nor the UK – so where does this hindsight come from?
I know that in the States they saw an initial boom in the microbrewing industry, then many of them dropped off. Since then of course, the numbers have steadily risen and continue to do so, so I suppose the comment is a half-truth…
http://www.themadfermentationist.com/2014/06/earl-grey-mild-ale-recipe-and-tasting.html
What is going to happen if all the followers around the world of TheMadFermentationist start brewing an ale with Earl Grey? Are the people/Earl Grey community ask for financial kickbacks?
Bit silly…
It seems that Rooibos is being used in the Sates already http://www.thedieline.com/blog/2014/10/22/oliphant-brewing
It’s about the money…. pure and simple. Absolutely ridiculous.
This is such an old-economy, “Apartheid Government”-style move it sickens me. It goes against everything the craft industry stands for. I really hope the industry will rally around this topic and let these ‘impostors’ know that they might try to bully the little guy, but we won’t take it lying down!
Just cant believe this. About a year and a half ago i moved to the Cederberg to manage a guest farm which farms wine, olives and Rooibos tea and produced my first wine vintage last year for sale from the farm. This was the year (2015) i was going to put some Rooibos wood in the wine as an experiment, and wanted to play around with rooibos in some beer brewing, which if i got it right wanted to produce and sell to clients visiting our farm ( was never going to patent the idea for crying out loud), but there goes that idea. I just cant believe that one can patent the idea of using these natural plants in your brew? Did anyone ever patent the process for making wine or beer, and the fact that you need a licence from the patent holder to use grapes or barley and hops respectively? If not im going to do it……..just gutted by this…..just plain and simple greed. I think that if you have a micro producer liquor licence than you can put what ever the hell you want in your produce.
Thanks for commenting James. I would urge you to go ahead with your experiments…the microbrewing industry will stand together on this…
What has happened to the patent? If I recall correctly – when this blog was written the patent was pending, has it been awarded? Or thrown in the bin?
Good question Jonathan…I’m not sure but will try to find out.
This is happening next week at Audacia, if anyone would like to attend, and perhaps get some more info. http://www.elsenburg.com/news.html
James – thanks so much for sharing. I’m sure there are a few people in the brewing industry who will want to attend!
I smell a rat.
I can’t see the article on the link in James’ post. I googled “elsenburg audacia” and could see in the search results that there is an event to do with Stellenbosch Wineries and rooibos, but when i clicked on the link it took me to James’ link … and no article.
Is this a conspiracy or just a technical glitch?
Hmmm. Very weird. I followed the link yesterday and read the press release…and yet it has indeed now disappeared. I;ll email and ask…
Call it South African tea instead of Rooibos… It is about the flavour, not the name. They are bullies. Do your own thing.
If only it were that easy, Rupert. They are patenting the use of rooibos in it’s botanical form, so it has nothing to do with the name “rooibos”, but with the use of the actual plant family.
See this http://www.thejogblog.co.za/wine-made-from-rooibos/
Seems like the patent on the wine side is on the technique of using rooibos instead of preservatives. I wonder if there is a patent for a rooibos brewing technique or just the trade mark?
http://www.bdlive.co.za/business/innovation/2015/02/26/rooibos-revolution-for-cape-wine
“Recent research by the department of viticulture and oenology at Stellenbosch University and ARC Infruitec-Nietvoorbij found powerful antioxidants in Rooibos that may assist in preserving the wine naturally. This method has the potential to eliminate the need for sulphur dioxide and other synthetic materials as preservatives”
I have preserved some beers for some time without using Rooibos, and so have some Belgians I know about.
The problem is that Stellenbrau reps now tell liquor stores that they shouldn’t buy rooibos ales like Rooibaard because they are “illegal”. Nice move guys. Show us what you are made of. The solution is simple, I think. As many brewers as possible should brew a rooibos beer. Maybe one could start a competition. Lucy, you’re good at this kind of thing.
if anyone’s interested is see this is coming up at WITS
“International expert on rooibos, Professor Jeanine Marnewick from the Cape Peninsula Institute of Technology, will talk about her studies on the two indigenous herbal teas, rooibos and honeybush. The lecture will take place on 12 March 2015 at 17:00 in the Seminar Room 5A03, Wits Medical School, Parktown Health Sciences Campus. Contact Lynne.Schepartz@wits.ac.za for enquiries.”
Liquour stores should be told not to buy rooibos tea for other reasons – like that shelf space should be preserved for decent beer 🙂
Unfortunately if they have trademarked the name (Rooibos beer) you can’t use the name – its not lekker, but its how trademarks work – at least as far as i understand.
However if Rooibaard are selling it as “beer that has been made with rooibos” or not using the term “rooibos beer” then I don’t think they are infringing on the trademark.
for those out there planning to fight this you could maybe rope in some well know musicians to the cause:
see lower down in this link:
http://m.news24.com/channel24/Music/News/Fokofpolisiekar-launches-second-craft-beer-Antibiotika-20150317
“More Fokofpolisiekar beers to look forward to:
June 2015: Hemel Op Die Platteland Amber Ale (Rooibos infused)”
I’ve been a very solid opponent of rooibos beer, but after tasting Rooibaard, I changed my opinion. It’s not a trademarking issue though. It’s a pending patent.
This is a very interesting link in regard to the validity or otherwise of the patent:-
http://homebru.net/2011/06/29/rooibos-beer-%E2%80%93-the-taste-of-africa/
Note the date – as at June 29 2011 he found an already commercially available beer with rooibos (in Canada!). That date precedes the “priority date” of the Audacia patent which is 11 November 2011.
See also on ratebeer – ratings dated back to 2009:-
http://www.ratebeer.com/beer/brasseur-de-montreal-rooibos-lafricaine/104728/
And see the Canadians jolly marketing at:-
http://www.brasseurdemontreal.ca/bieres-classiques
This is great guys. we must really have a defianace campaign against these “cash grabbers” of our natural resources! Has the “pending patents” being granted as of 28th June 2015?
I haven’t heard anything lately regarding the patent – will make some enquiries and see what I can find…
Hi, any further news on this?
Hi Ryan – I haven’t heard anything further and there have been more (unlicenced) rooibos beers emerging…
Have a little farm with house,buchu,honey bush and the sweetest mountain stream …and guess what am I about to do…..?
Ooh, the fynbos police will be after you!!
http://worldwide.espacenet.com/publicationDetails/biblio?DB=en.worldwide.espacenet.com&II=0&ND=3&adjacent=true&locale=en_EP&FT=D&date=20130516&CC=WO&NR=2013068999A1&KC=A1
The patent number is:
WO2013068999 (A1) ― 2013-05-16
From here it looks like the application has been published (A1) but the patent has yet to be granted (B).
Is that the correct reading? I’m not expert.
I’ve heard that there have been successful challenges to the patent…will keep the thread informed!
HI
Patents only get published once the have been granted so yes, looks like it’s been granted in Europe as well.
I have asked a patent attorney to check for me
hi all
Patent check shows that only New Zealand have allowed the patent to go through. There seems to have been 3rd party objections to the European patent which is still under review
Their patent seems to be based on the fact that Rooibos contains anti-oxidants and so you don’t need to use so much k-meta to preserve the freshness of wine, cider or beer. But there are plenty of other ingredients which also contain anti-oxidants, coffee and cacao being just two. Does this mean I can get a patent on using those in alcoholic drinks too? Every brewery making Coffee or Chocolate Stouts will have to pay me royalties…. nice!
Hehe – better get on that. There’s a fortune to be made (at other people’s expense of course…)