Plumpy'nut threatened by fat companies

April 9, 2010 1:16 AM

Nutriset, producer of Plumpy'nut (a widely distributed ready-to-use therapeutic food), is under attack from two American companies for their patent.

Their request for the patent to be broken due to humanitarian interest is partly backed up by MSF (Doctor Without Borders). However, Nutriset has set up franchises building self-reliance in some African countries into its production. Moreover, while a monopoly in something so life-saving is not the best option for the world, patents are necessary for protecting research. Nutriset losing their patent might raise interesting questions into patent protection for life-saving drugs.

posted by tweemy (38 comments total)

Patents: they're all fun and games, until someone from outside the US get one on something you want.
posted by vivelame at 1:43 AM on April 9, 2010 [5 favorites]

Here's the patent in question.

Here is a (U.S.) ABC News story.
posted by XMLicious at 2:16 AM on April 9, 2010

My immediate reaction was that the patent holders were wrong. Then I thought a similar argument could be made for all health/medical/medicine products, and perhaps less would get developed without the profit upside that patent protection allows. Then I thought, this is just fortified peanut butter, they really shouldn't be trying to defend this. However, Nutriset's argument that they are enforcing the patent to keep the US from competing with their third-world production partners is an interesting one if it's really true and if that is really their main motivation for "aggressively" enforcing the patent.
posted by ill3 at 2:20 AM on April 9, 2010

patents are necessary for protecting research

I raise my eyebrow at your hypothesis.
posted by Ritchie at 2:22 AM on April 9, 2010 [7 favorites]

The argument that "this is just fortified peanut butter" is completely disingeneous. If it was like that, it would be relatively easy to invalidate the patent on grounds of lack of novelty or obviousness. Instead, they want the patent "broken" on supposedly humanitarian grounds. Legally, this is not possible. At most, under the TRIPS agreement, the government may decide to enforce a compulsory license on the patent, but the patent would still be valid, and the licensees would have to pay (reasonable) royalties to the patent holder. It has happened before: notably, Brazil used that provision to enforce compulsory licences on antiretrovirals, on the grounds of a health emergency (AIDS).

Now, this is what the patent is actually about. Claim 1:

Complete food or nutritional supplement which contains at most 10% by weight of water, develops an osmolality of less than 100 mOsm/kg after immersion in four times its own volume of water and is stable to oxidation, comprising a mixture of food-grade products, said mixture being coated with at least one lipid-rich substance derived from oleaginous seeds and being enriched in vitamins, soluble or insoluble mineral salts, enzymes or mixtures thereof.

This is what is protected by the patent.
posted by Skeptic at 2:46 AM on April 9, 2010

Now, this is what the patent is actually about. Claim 1:

Complete food or nutritional supplement which contains at most 10% by weight of water, develops an osmolality of less than 100 mOsm/kg after immersion in four times its own volume of water and is stable to oxidation, comprising a mixture of food-grade products, said mixture being coated with at least one lipid-rich substance derived from oleaginous seeds and being enriched in vitamins, soluble or insoluble mineral salts, enzymes or mixtures thereof.

While that sounds quite technical and specific, I think it must be pretty broad, otherwise, I think these other companies would just invent a fortified peanut butter that derives it's lipid rich substance from a different kind of seed (though perhaps that is covered in a later claim). Also, a layman might think, well someone could create a peanut butter that contains at most 11% by weight of water and be clear of the patent. IANAL (but I was involved in a three year patent suit that went to jury trial), changing things like amounts and ratios don't steer you clear of infringement. For example, if I patent a garden hose and describe it as being 6 feet long, a competitor can't avoid infringement by making their garden hose 9 feet long.
posted by ill3 at 3:05 AM on April 9, 2010

The proof is in the ready-to-use therapeutic peanut-based pudding. Would things be significantly different for the hungry (not for the patent holders or violators) one way or the other if the patent were violated? Are the Nutriset people doing a good job of saving lives? Are they getting fat off government funds to feed the hungry?

If it's true that the Nutriset people and subsidiaries aren't producing the stuff fast enough to meet needs, ignore all talk of patents. Hungry people are hungry. Quibble over the accounts later.
posted by pracowity at 3:35 AM on April 9, 2010

"Plumpynut" sounds like a euphemism for testicular cancer.
posted by the quidnunc kid at 3:55 AM on April 9, 2010 [7 favorites]

The patent also describes a number of problems with furnishing food to malnourished people in developing countries and tries to demonstrate that research or expertise was necessary to arrive at the specified combination of properties for the product.

If it's true that the Nutriset people and subsidiaries aren't producing the stuff fast enough to meet needs, ignore all talk of patents. Hungry people are hungry. Quibble over the accounts later.

But according to the argument that appears to be made by Nutriset, it's not about the accounts. It's about establishing a protected, self-sufficient local industry within developing countries that is capable of producing the product. Hungry people are hungry but they also need jobs and national infrastructure; if the product is supplied by a variety of first-world corporations instead via some violation of the patent or by legally overturning it, all of that capital stays in the first world. That's the difference, that's what they say they're using the patent laws for.
posted by XMLicious at 4:25 AM on April 9, 2010

Luckily for Nutriset the tens of thousands of children who were messing around in the kitchen when their parents weren't looking and "invented" the same thing aren't inclined to sue.
posted by vapidave at 4:25 AM on April 9, 2010

It must also be noted that the MSF letter isn't calling for the patent to be overturned, but just expressing some righteous frustration to what they consider to be too restrictive licensing practices by Nutriset.
posted by Skeptic at 4:38 AM on April 9, 2010

Patent law was developed to help with a specific set of circumstances. For me, it comes down to 'least harm' caused, in this case it's between the patent holders profit margins and their local partners' operations on one side and millions of starving children on the other.

Laws aren't handed down to us by aliens, they should be used intelligently to bring the greatest benefit to the greatest number of people.
posted by wubwub at 4:41 AM on April 9, 2010 [3 favorites]

Hungry people are hungry but they also need jobs and national infrastructure

Yeah, I get that -- teach a man to ghoti and all that -- but try explaining it to the Unicef advert kid sitting in the dust with the big eyes and distended belly. He wants his PBJ now, not after the courts settle this thing in 2037.
posted by pracowity at 6:26 AM on April 9, 2010

The US is the world's biggest food donor, but laws there require that 99% of aid money be spent on American-grown surpluses.

Wow, I didn't know this. This is ridiculous considering that some areas of Africa could easily grow their own food if given the education and resources to do so. No wonder these people are fucked; if they don't accept the aid, they'll starve, if they do, local farmers go out of business.
posted by desjardins at 6:29 AM on April 9, 2010 [2 favorites]

Plumpy'nut is the worst food product name ever.
posted by djduckie at 6:31 AM on April 9, 2010 [1 favorite]

desjardins: "The US is the world's biggest food donor, but laws there require that 99% of aid money be spent on American-grown surpluses. "

So if this were changed, could we have our Plumpy'nut and eat it too? Buy the stuff from the Africans which are producing it, and distribute it to the ones which are in need? It may seem odd to just act as a middle man but this seems like a more efficient way to go in terms of promoting self sufficiency and preventing the problem from recurring.
posted by idiopath at 6:59 AM on April 9, 2010

if they do, local farmers go out of business and they starve some more, while on another continent, some people grow fat from all that "aid money".

Oh, and Nutriset *does* license his patents in the US, see here. Only, not to the usual fat cats (the other plaintiff, Breedlove Foods, seems more legit).
posted by vivelame at 7:00 AM on April 9, 2010

One more thing: patent litigation in the US is extremely expensive: the legal costs for each party are in the multi-million dollar ballpark. To think that money that would be better spent feeding children is going to be spent in such a legal battle...well, it rather sticks in my throat.
posted by Skeptic at 7:07 AM on April 9, 2010

Plumpy'nut is the worst food product name ever.

It sounds like a particularly horrible bit of Cockney rhyming slang. Or maybe what the rhyming slang stands for. In either case, I'm compelled by my inner twelve-year-old to pronounce it "Plumpy'nut HURR HURR".
posted by Mr. Bad Example at 7:19 AM on April 9, 2010

The issue here isn't the patent. Nutriset is capable of producing the 30,000 tons international aid agencies will buy per year. The issue is rich nations don't spend enough money on international aid.
Children are dying in Africa because we'd rather spend money saving ourselves from financial crisis. They're dying because political instability causes mass migrations which in turn cause famine, a political instability we fuel by supporting whomever will sell local resources (oil) the cheapest, regardless of their political legitimacy.
We also maintain sub-Saharan Africa into poverty by taxing the shit out off their food exports to protect our farming industry. As much as I have respect for MSF or any NGOs working in Africa, they'll never solve anything. The issue is us, the western world, raping Africa for the past 300 years.
posted by surrendering monkey at 7:30 AM on April 9, 2010 [1 favorite]

Let's add another data point: "Breedlove CEO David Fish said that, with the help of free legal counsel, it will be cheaper to take Nutriset to court than to pay royalties or a licensing fee. Neither he nor Mellace have ever contacted Nutriset." (source).
Why, yes Virginia, it seems Evil Nutriset even refuses licensing to people who don't ask about it!
posted by vivelame at 7:31 AM on April 9, 2010

Slight aside - that wiki page says that the Plumpy'Nut packs each have 500 kilocalories. Am I incorrect in thinking that means 500,000 calories per pack? Half a MILLION calories? That seems insane.
posted by FatherDagon at 7:58 AM on April 9, 2010

It probably just means 500 regular Calories. Food Calories (capital C) are kilocalories (lowercase c). It's a stupid convention.
posted by breath at 8:06 AM on April 9, 2010

idiopath: Buy the stuff from the Africans which are producing it, and distribute it to the ones which are in need? It may seem odd to just act as a middle man but this seems like a more efficient way to go in terms of promoting self sufficiency and preventing the problem from recurring.

There are so many inefficiencies and violence and corruption in the distribution system that if we could act as the middleman, they'd be much better off. However, I'm not sure how badly it would throw off the market price if we were buying the food from the farmers, not the end consumers.
posted by desjardins at 8:06 AM on April 9, 2010

Nutella is not sufficient prior art to invalidate claim 1?
posted by caddis at 8:18 AM on April 9, 2010

Is it just me, or is the phrasing of the FPP here really... odd? I read it, and took away that the makers of this wonder-food were being sued by evil fat-cat corporate American patent-holders who wanted to stop them from saving starving babies.

But it's actually rather the opposite of that.
posted by rusty at 8:54 AM on April 9, 2010

(a widely distributed ready-to-use therapeutic food)

Ice cream?
posted by Evilspork at 9:16 AM on April 9, 2010

"Plumpynut" sounds like a euphemism for testicular cancer.

Buffalo Soldier...
posted by mikelieman at 10:22 AM on April 9, 2010

Rusty, I agree.

Plumpynut company holds patent on food that saves lives. US based non-profits want to basically rip off plumpynut. Plumpynut argues that US based food aid will flood the market because they will be too cheap. Plumpynut wishes to defend the patent to protect possible future price/value of possible future African based production of plumpynut. Right now that African based production is not happening. There is still a vast need for foods like this, and Plumpynut is threatening the production of some of it.

So, if I do my math right... carry the 2... check for sign errors... Yep, Plumpynut is hardly the hero here. They may have a valid argument, laudable goals, and an earned good reputation, but still not putting it's RUTF where it's mouth is.

I understand the argument comes down to "teach a man to fish...", but the situation is a lot more like "Hey we're planing on teaching them how to fish, but they won't learn if you keep giving them fish" It would seem that an agreement by aid agencies* to purchase locally produced RUTF first, and fill the rest of the demand with foreign products, would solve any problems that Plumpynut would have.

*I'm assuming they're not imagining starving people buying this food with their own money, in something like a free market supply and demand engine? I'm not an expert at all, but this seems unrealistic and very far off.
posted by fontophilic at 10:29 AM on April 9, 2010

Nutella is not sufficient prior art to invalidate claim 1?

I would think that if it was, they would just send Nutella as the therapeutic food instead of Plumpy'nut.
posted by XMLicious at 10:37 AM on April 9, 2010

It seems like both sides have some admirable goals here, in terms of both feeding the hungry and encouraging self-sufficiency. There should be some way this can be negotiated to the benefit of the actual people they're trying to help.

Of course I feel the same way about the insanity of our policies causing instability and famine and then us also having fund drives and programs to help those affected by instability and famine....
posted by emjaybee at 12:08 PM on April 9, 2010

Rusty, I phrased the FPP in the way I perceived it. Nutriset is being attacked, once their product is finally on the market after years of struggling to have it be so widely-used. The main problem I see is those American companies think the patent should not be enforced because it causes deaths in Africa. Also, god forbid a foreign company should hold patents in the US.
Their solution is to have the American market supply the product, whereas Nutriset is at least trying to have some self-sufficient companies based in Africa that can produce and thus create jobs, which in turn will create money to help prevent malnutrition to some extent. An american company providing the same product for a cheaper price will destabilize that work. It is also fair until you read that it is not so much a problem of supply numbers, but of money spent in aid to buy those supplies. Instead of setting up as rivals, they could donate the money they would spend to set up production to help in Africa if their motivations were altruistic (a part of their grounds for disputing the patent: we're talking about saving lives here!).
I am not disputing that there should be a middle ground, but it does appear that there are a bunch of hypocritical reasons for denying someone else a way of making money so they can earn much more through doing an apparently altruistic-ish act.
posted by tweemy at 1:55 PM on April 9, 2010

On the other hand, you could view it as a monopoly patent-holder seeking to enforce its patent specifically and by its own admission to keep prices high, which is exactly what monopolies do. And in this particular case, in order to keep prices high so as to absorb all of the food aid money available from western donors to feed starving children.

I have a hard time seeing either party as admirable here. They're both for-profit corporations doing their best to make as much money as they can. They happen to be doing it, in this case, directly by letting or trying to prevent children from starving, but this is just an especially obvious case of what capitalism in general exists to do.

But if I had to pick a side, it's hard for me to say it sounds like a good idea to wait, keep the price high, and let African peanut producers try to ramp up production while children starve. It's not going to work, for one thing -- American peanut surpluses are enormous now, and they'll be enormous in ten years, or twenty years, or whenever you care to open the market. Second, the argument of the French company that "there is not the funding" to pay for any greater production is absurd. Breaking the patent would lower the price (no one contends that) therefore it would allow more RUTFs to be distributed for the same amount of money.

So that's why I'm saying that enforcing this patent will, in fact, literally ensure that more children starve. I totally see where you're coming from, but I can't agree with you. There has to be a better way to support local economies in the long run than sacrificing kids in the short run.
posted by rusty at 2:51 PM on April 9, 2010

Please mentally excise my second paragraph there, which was rewritten a number of times and unfortunately ended up not really making any sense. You can keep the first sentence if you want to. The rest of it should go though. I apologize for the incoherence. :-)
posted by rusty at 2:57 PM on April 9, 2010

"Plumpynut" sounds like a euphemism for testicular cancer.

Yeah, I...don't want to eat that.
posted by infinitywaltz at 3:42 PM on April 9, 2010

Slight aside - that wiki page says that the Plumpy'Nut packs each have 500 kilocalories. Am I incorrect in thinking that means 500,000 calories per pack? Half a MILLION calories? That seems insane.

one calorie is enough energy to heat one cubic centimeter of water one degree Celsius. A snickers bar contains about 280,000 calories. However, it's only labeled as 280 calories, one thousand times less, just like all food products. Why? It's a mystery of science.

But people often use "Kcal" or "kilocalorie" when they mean "Calorie as labeled on food products"
posted by delmoi at 8:41 PM on April 9, 2010

Nutella is not sufficient prior art to invalidate claim 1?

Maybe not, but a peanut butter pinecone bird feeder might.
posted by hotbutton at 9:00 PM on April 9, 2010

Maybe not, but a peanut butter pinecone bird feeder might.

Oh yeah.
posted by caddis at 9:21 PM on April 9, 2010