The Australian Distillers Association is seeking legal advice regarding a patent secured by Sydney distiller Archie Rose for a whisky production process it claims is globally unique.
Archie Rose founder Will Edwards and head distiller Dave Withers have successfully claimed the invention of a new method of whisky production in the Innovation Patent certified by IP Australia in January 2020.
The patent titled, A Method for Making a Composite Alcoholic Beverage, protects the “individual malt stream” process that Archie Rose says will underpin its whisky production moving forward.
The method provides that – in the case of Archie Rose Single Malt Whisky – each individual malt in its six-malt mash bill, “is milled, brewed, fermented, distilled and matured separately or alongside a single base malt”, the distiller explained in a recent blog post.
“[This allows] our team to tailor every step of the production process, including brewing temperatures, yeast selection, cask type, distillation rates, and maturation conditions to each specific malt, rather than having to settle for ‘average’ conditions that suit the whole mash bill,” it said.
“In summary, this process means we are keeping malt streams separate from start to finish, while the patent also calls for at least two roasted malt streams in the final product.”
Botany project brings patent to light
Public records state that Archie Rose subsidiary ARD Core Pty Ltd initiated the patent process in May 2018.
But it wasn’t until November 2020 that a second, successful patent application came to the attention of other distillers, when a press release announcing its new multi-million dollar Botany distillery referred to a “highly innovative and patented whisky production process”.
The patent has since been the subject of much debate and consternation among distillers, who have raised their concerns with industry body, Australian Distillers Association (ADA).
Archie Rose founder Will Edwards told Drinks Adventures it is unfortunate that the patent has been misinterpreted in the industry as being broadly applicable to the production of blended or vatted whiskies.
“What the patent is related to is such a specific process,” he said.
“We can’t find anyone that’s doing it and IP Australia did their checks and couldn’t find anyone doing it either.
“The fact that no-one had been doing it in the past demonstrates to a degree, how difficult it is to do and the fact that it is pretty niche.”
Why it’s unique: Archie Rose
Edwards said the method is unique in several respects, starting with Archie Rose’s six malt mash bill.
“Using more than one or two malts in whisky in general, is pretty unusual,” he said.
“Secondly, using at least two roasted malts is very unusual.
“And thirdly, processing those malt streams completely separately – from milling through to maturation – has never been done.”
Edwards stressed that distillers would need to employ all these methods to breach the patent, “not just one or two”.
“And when you consider that, it’s nothing at all like traditional vatting of casks or making blended whisky,” he said.
“I really don’t feel as though this patent constrains creativity for other distillers.”
Edwards said Archie Rose had decided to pursue the patent in this particular instance due to the level of intellectual property involved.
“We’ve spent years working on it, and we’ve basically designed the entire new distillery around this process,” he said.
He said it is necessary protection given the maturation time involved, which leaves the door open for other distillers to showcase similar production methods in a younger whisky, while Archie Rose waits for its stock to reach peak maturity.
“The reason we have chosen to patent this process is due to the nature of whisky production, whereby you come up with an idea, spend months or years perfecting it, spend months or years utilising it to lay down casks, and then wait years for that product to mature before you can actually release the product that features the innovation,” says the Archie Rose blog.
“As a company that prides itself on innovation and wants to share and communicate that innovation publicly, we therefore felt it was a responsible move to provide ourselves with some comfort that we can produce our whisky, and allow it reach peak maturity, without any pressure to release the spirit earlier than we would like due to external market factors.”
A shame for craft spirits: Backwoods
Victoria’s Backwoods Distilling is one of several distillers that has raised concerns about the patent move by Archie Rose.
“From where I stand, the process that is being defined by the patent is common practice among many Australian distilleries that I work alongside,” commented Backwoods co-founder Leigh Attwood.
“It feels like this patent is putting a hand break on this fledgling industry and denying others options for innovation.”
Added Bree Attwood: “The freedom to come up with ideas and try them out – without having to check patent infringements first – is something all craft spirit producers in Australia value and it’s what makes our industry so vibrant and exciting.”
“I think it’ll be a real shame if this changes the way we craft our spirits,” she said.
ADA calls for calm
Australian Distillers Association president Stuart Gregor on Tuesday confirmed the association was “well aware” of the matter.
“We are working with all parties across our broad membership to try to resolve any misunderstandings and misrepresentations that might be occurring,” he said in a statement.
ADA vice president and founder of WA’s Great Southern Distilling, Cameron Syme, told Drinks Adventures that as a distiller, he does have some concerns about the patent.
“But that is more than offset by the standing of the guys involved,” he said.
“Archie Rose are really good people, they’re valued members of our association and our community, and they’ve not done anything untoward at all – they’re entirely within their rights to seek to protect their intellectual property.
“They have done some pretty creative and cutting edge stuff, so I can understand that they would want to have protection for that investment in research and development.”
Syme, who is a lawyer himself, confirmed the ADA is seeking a professional opinion on the patent before it considers its next steps.
“Patent law is a very particular and specialised area – it’s a bit like going to a heart surgeon rather than a GP,” he said.
“I think a lot of people are reacting without having the technical legal knowledge of what it means, so we’ve got to make sure we’re speaking from a factual basis.
“I can understand people are concerned, but I think they need to let the ADA go through its process of establishing the facts and engaging in diplomacy with people.
“I don’t think this will be the last patent that will be sought by an Australian distiller, and maybe people need to be a bit more aware of intellectual property law.”
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