“Loose patent processes at the African end allow large areas of Africa to be covered with minimal work; treaty shopping allows multinationals a simple way to find good ways to tap into those processes.”
It is now time to draw conclusions about the Plumpy’Nut/Nutriset case (see web page).
The ethical aspects of the case are mind-boggling (see Part 1, Part 2, Part 3) and perhaps unsolvable (see Part 4). The technical aspects of the case are also complex (see Part 5, Part 6, and Part 7). From all this information, can be draw any conclusions about the problems that IPR might cause for humanitarian efforts?
Plumpy’Nut is a useful test case to use because of its technical simplicity: it is a single patent owned by a single company, covering a single product (though very broadly). There are two key problems. Problem one refers to the details of how Nutriset was able to get the patent granted so easily; problem two refers to how the treaty-shopping system is weighted against poor countries.
Problem 1: Ease of getting an African patent
African patents tend to be granted based on international searches without much national-level analysis. We earlier saw that this is the case for South Africa; there is no reason to assume that the situation is any different for poorer African countries. If a patent is shown to be valid in an international search, it will be granted in Africa.
We also saw that obtaining patents for large swathes of Africa is relatively simple via the ARIPO and OAPI systems. Just filling in two forms can basically get patents granted in 34 African countries.
A search for Nutriset at the WIPO indeed shows that the ARIPO patent has been granted under the PCT. Although technically each country can decide whether to grant a national patent, in practice this would not seem to be practiced.
The PCT search document (see pdf: 0900636180141db4) shows why the patent has been granted — it is indeed novel. There are at least two earlier products that contain (milk) protein, carbohydrates, vitamins, and minerals, just as Plumpy’Nut does. However the earlier prior art products are water-insoluble when packaged, but can be easily dispersed in water once opened. Plumpy’Nut can be consumed as is.
The aim of Plumpy’Nut was to produce a product that can be consumed without water. This is a huge advantage in a situation where clean water is not easily available.
If one ignores ethical issues, the case is completely clearcut: Plumpy’Nut is an innovative and useful product, and undoubtedly satistifes the novelty and inventiveness steps needed in general for patents. The ARIPO will in effect have had little or no choice, according to its own rules. There have been no legal grounds to reject the patent.
Problem 2: Picking & choosing a trade agreement
The complexity of international IPR is noted by a Dec 21 posting of the EFF, related to trade agreements that include IPR. “Local trade agreements are interconnected among hub-and-spoke systems, creating networks that transmit IP provisions across agreements, and eventually from one domestic IP regime to another. It’s a harmful network effect.”
There is a very good ongoing non-IPR-related case that shows just how treaty-shopping can work: tobacco company Philip Morris vs the nation of Uruguay. Uruguay’s GDP is les than 50 billion USD, while the market cap of Phillip Morris is ~100 billion USD and annual revenues are ~60 billion USD. The company is literally larger than the country.
Uruguay has instigated very strong anti-tobacco laws. According to Fox News Nov 23, 2012, “The country requires 80 percent of every cigarette package to show graphic images of smoking consequences, from diseased lungs and rotten gums to a cartoon image of a mother blowing smoke at her baby’s face.”
This caused Philip Morris to sue the country in a World Bank tribunal for breaking a trade agreement with Switzerland (where Philip Morris is based). The Philip Morris response (quoted in the same article): ”The Uruguayan government has done something which no other government has done, [it] doesn’t seem to make any sense to us from a public-health perspective and has clearly damaged our investment there…. We are challenging regulations which are not fairly applied to all companies, add further fuel to Uruguay’s huge black market in cigarettes and have not even been shown to reduce smoking prevalence.”
For more details from various perspectives, see TechDirt; Guardian; UPI; TobaccoTactics. (Note that it’s proven to be almost impossible to find sources that would be favorable to Philip Morris. We may be getting only one side of the story here).
The case is currently still unresolved, but it is highly indicative of what treaty shopping can lead to. When companies are larger than countries, treaties can lead to strange results.
What is the end result
Things will not get any better in Africa. The big international trade treaties (TRIPS, TPP, and so on) receive quite a bit of publicity and are, relatively speaking, actually fairly transparent. Bilateral treaties are obscure and opaque. When there is a huge wealth asymmetry between the countries (Switzerland and Uruguay in this case), the treaties may be fair — or not.
Loose patent processes at the African end allow large areas of Africa to be covered with minimal work; treaty shopping allows multinationals a simple way to find good ways to tap into those processes. The combination does not sound good.
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.