“The Plumpy’nut Dustup”

by Walter Olson on April 17, 2010

The nutritional paste seems to be a really useful invention in getting international food assistance to the poor. Does that mean it’s okay to break its patent? [Alanna Sheikh, AidWatch]

{ 9 comments }

1 Dirk D 04.17.10 at 8:28 am

“They have two main points. First, that Plumpy’nut as a product is too simple to be patentable, and second, that the patent is limiting access to the product.”

I hope they have better legal arguments than what the story is saying (I’m sure it’s dumbed down) because neither of those points are relevant to patentability. That said, I’d like to see the complaint and the patent. Considering we’ve been producing and eating fortified foods for the better part of a century, I can’t imagine the patent is very broad and if it is, I’d bank on obviousness problems.

2 Bill Poser 04.17.10 at 2:55 pm

I suspect that “too simple to be patentable” is a sloppy way of saying “obvious”, which is a perfectly fine legal argument against a patent.

3 VMS 04.17.10 at 3:01 pm

There are multiple international patents on this invention including US Patent 6,346,284 http://www.google.com/patents/about?id=UGUJAAAAEBAJ&dq=patent:6346284&as_drrb_ap=q&as_minm_ap=0&as_miny_ap=&as_maxm_ap=0&as_maxy_ap=&as_drrb_is=q&as_minm_is=0&as_miny_is=&as_maxm_is=0&as_maxy_is=

The invention in its basic form is a low water content, low osmolality food product coated with a lipid-rich substance derived from oleaginous seeds.

[The would be infringers] “have two main points. First, that Plumpy’nut as a product is too simple to be patentable, and second, that the patent is limiting access to the product.” The only hope to invalidate this patent is to go through the whole history of food patents and other publications and hope that someone published this invention more than one year before the date of application for the patent (US) or before (most the rest of the world).
The argument that “the patent is limiting access to the product” is a “what planet do you come from?” argument. That’s what patents do!

I take the “too simple to be patentable argument as an “obviousness” argument under 35 USC 103. Unfortunately for the would be infringers, the invention does not appear to be “obvious to one of the ordinary skill in the art” under US Supreme Court precedent. Also, too many patent offices have handed out patents on this invention for an obviousness challenge (or a prior art challenge) to have a likelihood of success. My suggestion is to negotiate the best royalty and pay it. There are other products that adequately treat malnutrition, but this one seems to overcome the limitations of earlier products and is easier to supply and use (long shelf life and no mixing or dilution required).

The owner of this patent should not have to spend legal fees defending its validity against these seemingly frivolous arguments. In this case the patent sysytem seems to be working, but a potential customer just doesn’t want to pay the price.

Anyone venture to guess who will get sued when (not if) a consumer of this peanut paste has an anaphylactic reaction to the peanuts?

4 Dirk D 04.17.10 at 4:27 pm

“Unfortunately for the would be infringers, the invention does not appear to be “obvious to one of the ordinary skill in the art” under US Supreme Court precedent.”

What makes you think this? Have you examined the prior art?

“Anyone venture to guess who will get sued when (not if) a consumer of this peanut paste has an anaphylactic reaction to the peanuts?”

Luckily, peanut and other allergies are much less common in the developing world.

5 Bill Poser 04.17.10 at 8:26 pm

The argument that “the patent is limiting access to the product” is a “what planet do you come from?” argument. That’s what patents do!

I can’t be sure without having seen the suit (to which nobody seems to provide a link), but I suspect that this is not intended as an argument for invalidating the patent but refers to an attempt to invoke the compulsory licensing provisions of TRIPS. If so, plaintiff’s strategy is to argue that the patent is not valid, but if it is valid, a compulsory license should be issued to them.

6 Dirk D 04.18.10 at 8:35 am

Bill,

I haven’t found the suit, but from the article below it seems they are going after only the US patent (which unlike some other countries, doesn’t have a compulsory licensing statute). Also from their quotes in the article, they don’t seem interested in a license at all.

http://blog.taragana.com/business/2010/01/13/us-nonprofits-sue-french-firm-over-patent-they-say-blocks-them-from-making-food-for-hungry-20280/

7 nevins 04.18.10 at 10:09 am

If it is so obvious, then why was it not in production already. The plaintiff alleges that this is a common combination in a common or obvious manner. If this is so, then they have every incentive to build upon prior arts and create something better for which they could be rewarded with an exclusive marketing situation.
The patent system spurs folks to create by rewarding them for doing so; it spurs others then to create as the best way to defeat the exclusivity of a patent it to invent something even better.

8 James Fulford 04.18.10 at 11:02 pm

I remember when P. J. O’Rourke, visiting Africa, used the phrase “Purina Famine Chow” to describe the food the agencies were bringing. That was Unimix, not Plumpynut.

“The food we’d brought to them was something called Unimix, a sort of Purina Famine Chow made of 50 percent corn, 30 percent beans, 10 percent sugar,” ["All the Trouble in the World: The Lighter Side of ..., Volume 1994, Part 2? - Page 89]

9 Jim Collins 04.19.10 at 10:21 am

“It’s for the starving children”. “How dare they be allowed to make a profit off of starving children.” “How dare they make a profit!” “There ought to be a law against it!” “We’ll just take their patent and tax them to death!”

Cynicism meter pegged.

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