Can something as trivial as peanut butter be patented, and the patent used to hinder famine relief efforts? Yes.
I have been updating some IPR-related post of mine from way back in 2012 to see whether anything has changed. Not much, it seems. IPR is an obscure and ethically complex area, but in some cases fascinating in a fairly perverse way.
I find that Plumpy’Nut is the most fascinating of them all. It sounds like a case of a evil guy profiting from starving people… yet in fact it is not so simple at all. This is a series in multiple parts, and each part goes deeper and deeper into the technical details — and also bewilderment. In the end, I have no idea what the ethics of the Plumpy’Nut case are.
The background is simple: one single patent, US 6,346,284. It is patent for a peanut-based paste which can be used as an emergency protein source for the malnourished. The knee-jerk question is clear: how can it be ethically right that something like this can be patented? And how can something so trivial be patented in the first place?
When one digs into the issue a bit more, things become complex.
This a good case to study because revolves around just one patent, US 6,346,284 (see information in Google Patents, EPO, USPTO). The patent has also been granted in numerous other countries. The patent is owned by Nutriset (see Wikipedia page), which produces a product called Plumpy’Nut (see product page, Wikipedia; note that the Wikipedia page is disputed, but it does give an overview of the basic facts). The company does not appear to hold other patents.
Plumpy’Nut is a ready-to-use therapeutic food (RUTF), an emergency ration that can be given to people who are close to dying from starvation. It was developed in 1996 by Nutriset together with the IRD, a French public research entity. It is, essentially, peanut butter. The patent is fundamentally a recipe for making a paste that contains peanut butter, powdered milk, sugar, and vegetable oil, and additional vitamins and minerals. If any of the four components is left out, the paste is no longer useful for famine relief.
The patent is broad enough that the patent owner claim that almost any peanut-based emergency ration infringes on the patent. Nutriset is in fact doing just that; it has been hindering others from making or using the product in the 38 countries where the patent is valid (including many poor countries in Africa). The patent is valid for 20 years, and will only expire in 2017.
For more on the controversy, I will just link to the professional articles. Please read NY Times September 2 2010 and BBC April 8 2010, UT San Diego Jan 16 2010. They are well-balanced and do give opinions from both sides. For extensive research on the issue, please read material from Christine Gorman: Pbpatent and GlobalHealthReport. IPJournal May14 2010 has a somewhat more technical discussion. Kraemer 2012 discusses the legal aspects in detail, and also includes a highly unbiased review of the basic facts.
I strongly urge reading the material. It makes it amply clear that case Plumpy’Nut is far more complex than it appears at first sight. Nutriset has reasons for acting the way it is acting, whether or not one considers those reasons valid.
According to the company’s own press release of April 4, 2011, “The company Nutriset has exclusive customers like humanitarian actors (UN agencies like Unicef, UNHCR, and WFP , as well as the most important global NGOs), and as for mandate, since its creation, “feeding children” in order to bring supports to the poorest populations and to devise solutions for a better nutritional autonomy in developing countries”. According to the same press release, Nutriset had a turnover (revenue) of 95 million EUR in 2010, but profit levels are unknown.
According the the IPJournal article, Nutriset provides more than 90% of the global supply for humanitarian agencies. In practice it holds a monopoly. For the most part, the NGO’s that are involved have kept a low profile in public, for good reason. These are sensitive business dealings, and antagonizing the other side is pointless.
However, Médecins_Sans_Frontières has come out with strong words. A letter sent on March 24,2009 is covered by GlobalHealthReport; a more strongly worded open letter was released November 13, 2009. It is clear that there has been unhappiness about the way Nutriset conducts its business.
I actually do not wish to go very deep into these controversies, especially the political implications, since others are handling those controversies far better. I’m interested in the mechanics behind the problems, not finding the demons. And besides, as I will later show, Nutriset could be doing much worse things.
Although the US patent is the one that has been litigated against, the patent is valid in at least 37 other countries, according to the IPJournal article. Many of these are in developing countries; Nutriset’s own patent usage agreement lists the following African nations: Benin, Burkina Faso, Cameroon, Cote d’Ivoire, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Equatorial Guinea, Kenya, Lesotho, Malawi, Mali, Mauritania, Mozambique, Niger, Uganda, Central African Republic, Republic of the Congo (Brazzaville), Senegal, Sierra Leone, Sudan, Swaziland, Tanzania, Chad, Togo and Zimbabwe. (Note that these are also the countries in which Nutriset is now allowing license-free production, as will be discussed in the next installment).
There has been litigation around the US patent. Two American companies sued Nutriset in 2009 and tried to invalidate the whole patent; see presentation on the case against Nutriset. A decision in November 2011 appears to have gone against the two companies (press release, summary, legal decision). However, I do not know if there are still legal actions or appeals going on. Nor do I really have a need to know. If any action is ongoing, it is strategically wise to be quiet about it.
For the moment, in any case, the patent stands, in many countries with highly vulnerable populations, and Nutriset can enforce it until 2017.
However. The situation is actually far more nuanced than this, as will be shown in the next part of the series.
Image source: Unicef USA
Acknowledgment: The research for this series has been done between 2012 and 2014. The series has benefited greatly from discussions with Kalle Pietilä, Viv Collins, Niko Porjo, and Timo Tokkonen.