If We Told You That, We’d Have To... You Know...
Protecting novel
compositions and
processes.
By Steve McDaniel, PhD JD
Technology Litigators
Contributing Editor
smcdaniel@technologylitigators.com
The story is told that when a master brewer in the early 1930s retired from a successful German beer manufacturer,
it dramatically impacted the company’s business, which had grown on the fame of one of
his beer recipes. Even though the brewer
taught the recipe to his colleagues before his
departure, none could duplicate his results.
When they brought him out of retirement to
reteach his acolytes, the effort failed when he
left the plant to head back to his retirement
cabin in the Alps.
Desperate to understand its repeated failures,
the company filmed every step in the brewing
process, starring none other than the master
brewer himself. Even with the motion picture
log of the process, the company failed to duplicate the master brewer’s results.
Then something caught the eye of a student
brewer studying the film. Just prior to closing
the vat door and beginning the brew cycle, the
master brewer would stick his head into the vat
for just a moment, apparently looking for something in the mash suspension of grain, sugars
and yeasts.
The young colleague rushed to the mountain
retreat with film and projector in hand. He
asked the old brewer what he was looking for in
the vat. “Oh, I am not looking for anything,” the
master brewer said. “I am spitting in every batch
for good luck. Of course!”
It turns out the enzyme amylase found in
human saliva was initiating a chain reaction that
eventually kicked off the growth of the special
strain of yeast needed for the company’s special
brand of beer. Without that tiny bump, this par-
ticular yeast went off in another metabolic di-
rection that, while it produced beer, failed to
produce the famous and very profitable suds.
This little fact was kept as a closely held trade
secret for many years, surviving even war and
concerted attempts by competitors to reverse-
engineer the results, making many German
marks of profit for the company.
Coatings On Tap
The paint and coatings industry is also one
whose recipes tell only a part of the story. We
produce many high-solids suspensions, with
many ingredients, using many process steps all
of which are embodied in the product on the
shelf. But, even with the product in hand, and
even with the publicly available Materials Data
Safety Sheet, a competitor is sorely pressed to
duplicate the coating in many cases. The more
complex the coating formulation, the more intricate are the process steps, the greater the number of minor additives, the greater is the task of
the copyist.
In some cases, we patent these novel compositions and processes. However, in many others,
like the master brewer we keep the “good luck
spit” to ourselves as a closely held trade secret,
and aggressively try to prevent its disclosure.
Sometimes, we fail at the latter. This is why we
continue to see high-profile cases of trade secret
theft of paint formulations and processes.
My legal career has been made prosecuting
intellectual property misappropriation. In view
of increased competition in a climate of eco-
