West Australian distillery Limeburners is mounting a challenge against the controversial whisky blending patent secured by Sydney’s Archie Rose.
Cameron Syme – founder of Limeburners and affiliated whisky brands Tiger Snake and Dugite – will argue the ‘individual malt stream’ blending process was commonplace long before Archie Rose initiated the patent process in May 2018.
“I think there’s some major issues with the patent, in terms of implications for the Australian industry,” Syme told Drinks Adventures.
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“There’s probably half a dozen distilleries in Australia that have been doing this for some time.
“I think we really need to put the argument up to IP Australia to say, ‘there is no novelty in this, it is standard commercial knowledge and general industry practice’.”
Australian Distillers Association shuffles committee
Syme’s challenge comes after the Australian Distillers Association sought and received professional legal advice on the patent.
The Limeburners founder initiated this process as ADA vice president, but has this week stepped down to pursue the proceedings at arm’s length from the industry body.
“I don’t want anybody from either side arguing that the ADA is conflicted, so I think it’s better for the ADA’s governance that I step aside,” said Syme.
“The ADA’s role is to represent the interests of distillers generally. It’s not its place to be challenging production methodology when the ADA itself is not a distillery.
“I think it’s important that it maintains its position as the peak industry body.”
Archie Rose founder Will Edwards has also temporarily vacated his committee position.
Patent re-examination
Syme is seeking re-examination of the patent by IP Australia, one of two legal avenues open for a challenge.
He will present evidence to IP Australia that his company has been using individual malt streams of roasted grain since 2011, “seven years before Archie Rose”.
But Syme would not go into any further detail about the exact nature of his distilling and blending techniques.
“I subscribe to the KFC and Coca-Cola approach, where things that are particularly unique, we keep confidential. I manage our IP that way,” he said.
He will submit affidavits from other distillers he claims have engaged in similar practices, together with an array of new supporting material.
He suggested the patent examiners may have missed some of this prior art because their investigations were limited to the term ‘roasted malt’.
“‘Roasted malt’ is synonymous with the term ‘specialty malt’, and if you search only ‘roasted malt’ you won’t get the same hits,” said Syme.
“If you search specialty malt, there’s lots of information around the world talking about people doing this type of thing.”
Syme said similar production methods to those patented by Archie Rose have been detailed in the academic reference book Whisky Technology, Production and Marketing – first published in 2003, with a second edition published in 2014 – and Alt Whiskeys: Alternative Whiskey Recipes and Distilling Techniques for the Adventurous Craft Distiller, published by America’s Corsair Artisan Distillery in 2012.
“Canada’s got over 100 years of doing single grain distillate streams, ageing separately and then blending afterwards,” he added.
“I’ve got distillery friends in Germany who’ve been doing it since 2012, and Sons of Liberty Distilling in the US has been doing it since about 2012 or 2013.
“And in terms of roasted malts, Glenmorangie Signet‘s been around for 20 years,” said Syme.
New territory for ADA
The ADA said in a statement: “We understand and respect that Archie Rose have acted completely within the bounds of the law, and they are absolutely within their rights to pursue this innovation patent.”
“At the request of some members, the ADA is doing what we can to ensure it is appropriately reviewed, noting this is new and complex territory for the ADA as we have never previously intervened on any matter that is a legal undertaking by a member.”
ADA president Stuart Gregor told Drinks Adventures the two committee roles will be kept vacant for the time being.
“We hope to have both Will and Cam back in their positions on the committee as soon as possible,” he said.
Will Edwards said he is supportive of the ADA’s handling of the issue and won’t be making any further comment at this stage.
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