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April 13, 2010

Another Step in the IP/Lifesaving Debate

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Posted by Alan Wexelblat

This time it's not just medicine. At the end of last year, a couple of US non-profits filed a challenge to US patent No. 6,346,284 which describes a food product currently marketed as "Plumpy'nut." Despite the cute name, the product has a serious use - it is what is called an RUTF, a ready-to-use therapeutic food. Because Plumpy'nut requires no water to reconstitute and has a safe shelf life over over two years even in harsh conditions, the food is considered ideal for relief of severe malnutrition in areas without some basic infrastructure such as clean water or easy access to refrigeration. According to WHO, malnutrition is the cause of half of all child deaths worldwide, so this is serious business.

The IP issue - as in the case of medicines - revolves around the patent. The company holding this patent does not license it, so it is not possible to produce the food equivalent of generics. There's also some question about whether the patent itself is over-broad, which is a convenient hook on which to hang a suit but misses the issue I think is important.

A BBC story from last week indicates that the patent holders, a French company called Nutriset, are well aware of the moral dimensions involved. They argue that "No child in the world has even been denied access to the product as a result of the patent issue" which may or may not be true, but at least it goes straight to the heart of the concern. It is acknowledged by both sides that there is more demand for RUTFs than Nutriset is currently meeting, but simply making more bars isn't always the only factor in a solution.

For example, a TimesOnline story from last August describes how India blocked the use of Plumpy'nut, in part due to concerns over safety and in part due to concerns over whether an imported foreign product should be used to solve a problem that Indian authorities seem to believe should be solvable with local products. Again, this is (in my opinion) much more on the point than debates about which countries do or do not recognize the US patent.

Nutriset is making similar arguments, saying that they'd be happy to ramp up production but funding and systems of distribution are lacking. I'd love to see those arguments engaged directly - what compensation (funding) should Nutriset get for its product? Who should pay? Would a compulsory local manufacture-under-license program both provide adequate profit to the company and also address national governments' concerns about local solutions?

Intellectual property doesn't always have moral dimensions, but when it does they can be life-or-death and there needs to be a much more serious engagement with those dimensions in order to shape a coherent global IP regime.

Comments (5) + TrackBacks (0) | Category: Big Thoughts


1. M Clement Hall on April 14, 2010 8:21 AM writes...

You didn't mention the 95% Amercan origin food in the USAID requirement, nor the effect on competition this would have internationally. Plumpynut is made in other countries and the wish to break the patent is not to make it more widely available -- it's to get a share of a good thing and make a profit out of it, which the current manufacturers do not do. I've seen plumpy nut in action in feeding centers run by Doctors Without Borders, and believe me, it is a good thing, and should not be damaged by some profit oriented company wanting a piece of it. There is nothing to stop them from making their own peanut-based food

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2. RĂ©mi Vallet on April 14, 2010 11:47 AM writes...

Thanks for your interest in this matter, and for giving a balanced account of it.
However, I'd like to correct a few misleading points. Indeed, you write that "The company holding this patent does not license it" and that "there is more demand for RUTFs than Nutriset is currently meeting". Both statements are erroneous.

Today, according to UNICEF, production capacities for Plumpy'nut and other brands of RUTF are around 60,000 metric tons, double the level of demand. Therefore you can see that production capacities are not the issue. In addition to members of the PlumpyField network (Plumpy'nut producers in 11 developing countries, a network initiated by Nutriset), several manufacturers of RUTF, independent from Nutriset, are established in a variety of developing countries. Some are located in countries where Nutriset does not hold a patent (India, South Africa, Ethiopia, Haiti, Nepal, etc.), and some in countries where Nutriset does hold a patent, but granted a license (Kenya, Malawi, Uganda).

The problem is that demand is by far insufficient to meet the needs of the 20 to 26 millions children suffering from severe acute malnutrition. This is because funding to scale-up adequate nutrition programs to take care of those children is lacking. World Bank, in a recent report (Scaling Up Nutrition: What Will It Cost?, Nov. 2009), estimates that $12.5 billion are needed each year to efficiently tackle the problem and significantly reduce mortality and morbidity linked to undernutrition. Unfortunately, another serious organization calculated that over the 2004-2007 period, the annual commitment by major donors only reached an annual average of $350 million (Malnutrition: How much is being spent?, MSF Access Campaign, Nov. 2009). So there is clearly a gap to be filled.

Hoping this gap will be filled, Nutriset recently endorsed the "Scaling-up Nutrition: a Global Framework for Action" policy brief, a document resulting from a wide international discussion & consensus.

I hope this comment answers some of your questions and concerns.
For regular updates on the PlumpyField network, Plumpy'nut and other products to treat or prevent malnutrition, please follow us on Twitter, through our @PlumpyField account.

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3. DrWex on April 14, 2010 3:22 PM writes...

Erm, well, OK. I'll give you that breaking a patent would let someone else make a profit from it too. But the people suing in this case are themselves non-profits, not a competing commercial enterprise.

I have not seen anything indicating that Nutriset do not make a profit from Plumpy'nut - in fact, they're a for-profit company not a charity. Do you have a source for that?

And finally, the point of a patent is precisely to stop someone from (unauthorized) copying, including in this case possibly making their own enriched peanut butter-based food. What else is the point of a patent?

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4. Outtascope on April 19, 2010 4:06 PM writes...

"What else is the point of a patent?"

THE point of a patent is to allow the dissemination of inventions that would otherwise be locked up in individuals hands due to profit motive. It was to ensure that an inventor's financial interests were protected WHILE making sure that the invention is not kept secret.

Patents are about balancing the financial interests of the inventor with the interests of the commons, such that the advancement of the art and science is not unnecessarily impeded. They are not intended merely to be financial instruments, which is unfortunately what they have devolved into over the last 50+ years.

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5. DrWex on April 22, 2010 1:16 PM writes...

@Outtascope - a patent is a limited grant of monopoly. While it's certainly possible to patent something and then sit on it so nothing comes from the invention, the point is a grant of a limited commercial monopoly. The point of disclosure as a prerequisite to patent grant is not so someone can disseminate their invention but so that anyone can see what is that is being protected. The filing and disclosure requirements to get a patent are the same whether or not one plans to use the patent.

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