The New York Times just published an in-depth story on RUTFs. Andrew Rice’s story provides a historical perspective and looks at the dramatic impact these products have had on humanitarian assistance. He also examines the history of the invention, its eventual ownership by Nutriset and the patent dispute. To read the story visit: “The Peanut Solution“
“American food aid must comply with stringent regulations meant to encourage domestic procurement…
The patent has since been registered in 38 countries, including much of Africa….
Nutriset’s critics say that…the Plumpy’nut patent is so broad as to encompass just about any kind of nut-based nutritional paste. “There are other people that would like to enter into the business,” Ben Tabatchnick, who runs a New Jersey-based kosher soup company, said. “But everybody is afraid of being sued.””
Then, in response to this posting, an article appeared on the Huffington Post written by Jeffrey Sachs, Jessica Fanzo (a nutritionist at Bioversity International) and Sonia Sachs, entitled “Saying “Nuts” to Hunger”. This provided some very interesting additions to the debate regarding the type of hunger that Plumpy’nut addresses. There were also some interesting comments relating to the IP aspects of the case. Firstly:
“…it is absurd to think that a patent should legitimately give a monopoly right to use a fortified peanut-paste to fight acute hunger. The ingredients are simple: peanut paste, vegetable oil, powdered milk, powdered sugar, vitamins, and minerals. The nutritional values of peanuts and the other ingredients have been known for ages, and only the worst misuse of patent law would grant a broad monopoly claim to such knowledge”
Well said! And secondly:
“…it is a standard solution of global intellectual property law that urgent public health needs supersede patent rights. Poor countries should exercise their full right of “compulsory licensing” and other legal protections to produce or to import urgently needed low-cost nutritional supplementation in the face of famines, just as they do to obtain low-cost AIDS medicines.”
I wanted to look a little deeper into this second point. Of course, not everyone wants to know the ins and outs of the IP component, but that is what we at CAS-IP enjoy most!! The global intellectual property law referred to in the article is, presumably, the TRIPS agreement. I am not a lawyer and therefore I am not familiar with the nuances of TRIPS; however, my understanding is that the “compulsory licensing” of TRIPS (an international agreement) requires definition of an emergency as determined by judiciary (at the national level), adding a level of complexity. The agreement in fact doesn’t mention “compulsory licensing” outright, rather “other use without authorization of the right holder” (see article 31)
The WTO site goes on to explain:
“Compulsory licensing is only part of this since “other use” includes use by governments for their own purposes. Compulsory licensing and government use of a patent without the authorization of its owner can only be done under a number of conditions aimed at protecting the legitimate interests of the patent holder.”
This includes remuneration, incidentally! So, it is an option, but certainly not an immediate one, and not one without cost! I haven’t had the time to research the HIV/pharmaceutical examples as cases, but it would be very interesting to know more about these to draw on any lessons learned for agriculture.
(Thanks to Peter Bloch for his contributions to this post)