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Will a Patent for Peanut Butter Prevent Nonprofits from Helping to Feed Starving Children?

Published onMay 14, 2010
Will a Patent for Peanut Butter Prevent Nonprofits from Helping to Feed Starving Children?

When it comes to malnourished children, there just might be a miracle treatment out there.  In 1996, Nutriset, a French-based company, and Institut de Recherche Pour Le Development (“IRD”), a French public research institute, created Plumpy’Nut, a so-called ready-to-use therapeutic food (“RUTF”).  RUTFs are used to treat young children suffering from severe acute malnutrition.  RUTFs are a successful treatment for severe acute malnutrition because they include the nutritional requirements to aid in fast recovery from malnutrition.  Complaint at 16, Mama Cares Found. v. Nutriset Societe Anonym France, No. 09-cv-02395 (D.D.C. Dec. 18, 2009).  Nutriset currently provides humanitarian agencies with an estimated ninety percent of the global supply of such foods.  Packed in foil pouches, Plumpy’Nut is a sweetened peanut paste that provides essential vitamins and minerals in 500-calorie doses.  The paste is a “mixture of peanut butter, powdered milk, sugar, and vegetable oil fortified with 40 vitamins and minerals.”  It has been heavily used by the World Food Program, Doctors Without Borders, UNICEF, and other humanitarian groups.

It doesn’t seem a stretch to say that RUTFs like Plumpy’Nut are a miracle treatment.  The product can be safely stored for two years.  Humanitarian agencies have found that it has a nearly ninety percent success rate in reversing severe malnutrition in children.  In fact, Plumpy’Nut is so easy to use that these children can be treated at home rather than in a hospital.

But two American nonprofits, Breedlove Foods Inc. and Mama Cares Foundation, would like to enter the RUTF industry and increase production of their own “high-protein peanut butter-like paste[s].”  Mama Cares is using leftover bits of cashews from snack foods produced by the Mellace Family Brands to develop its own nut paste, Re:vive.  Breedlove Foods is also crafting a product, VitaNUT Pro, using peanuts locally-grown in Lubbock, Texas.

There’s just one problem:  Nutriset holds U.S. patent No. 6,346,284 (“the ‘284 Patent”) and similar patents on Plumpy’Nut in 37 other countries.  Mike Mellace, executive director of Mama Cares, claims the Nutriset “patent is so broad and generic . . . [t]here are numerous products on the market today that would violate this patent.”  This stance appears supported by Dr. Jim Sherry, who said the patent “is so broadly written . . . . [i]t covers most any combination of a whole wide range of foodstuffs.”

Critics of the ‘284 Patent argue that Nutriset is using its patent to block competitors, such as Breedlove Foods and Mama Cares, from creating their own RUTFs.  It seems Nutriset “isn’t shy about sending warning letters to anyone developing a nut-based food for the malnourished.”  Under World Trade Organization regulations, Nutriset can “challenge anyone who makes, uses, or imports a product like Plumpy’Nut in any country where Nutriset holds a valid patent.”  Rather than try to negotiate licenses, Breedlove Foods and Mama Cares have decided to challenge the patent.  Using free legal counsel, the two nonprofits feel litigating the patent will be cheaper than paying royalties or a licensing fee to Nutriset.  In the complaint, Breedlove Foods and Mama Cares allege that the ‘284 Patent is invalid for failure to “comply with the conditions and requirements for patentability set for in Title 35, United States Code, including but not limited to, the provisions of 35 U.S.C. §§ 102, 103, and 112.”  Complaint at 26.  Among the other allegations in their complaint, Breedlove and Mama Cares contend that Nutriset and IRD have declined to license groups in the United States to “manufacture a product allegedly covered by the ‘284 Patent and threatened to sue anyone who in its view makes or sells an allegedly infringing nut-based RUTF.”  Complaint at 20.  Nutriset and IRD have sent letters to groups interested in producing nut-based RUTFs warning those groups of their unwillingness to license the ‘284 Patent and that providing the RUTFs may constitute infringement of that patent.  Complaint at 21.

study by UNICEF indicates that relying on a single supplier for RUTFs is not likely to be enough to match the need for those products and could be an unreliable way to save these malnourished children.  In November 2009, Doctors Without Borders entered the fray, writing an open letter to Nutriset.  In that letter, Dr. Tido von Schoen-Angerer wrote: “The need for humanitarian nutritional products is vast.  These products will need to be of good quality and at the lowest possible cost.  There needs to be more than one worldwide supplier to ensure a secure supply chain at all times and allow for surge capacity for large nutritional emergencies.  The intellectual property pertaining to nutritional products of a humanitarian nature must therefore be handled differently from that pertaining to commercial products.”

According to its spokesperson, Remi Vallet, Nutriset makes arrangements where organizations can obtain a license to make Plumpy’Nut exchange for a fee.  Moreover, the company offers franchises, mostly in developing countries, to meet supply demands for Plumpy’Nut.  Nutriset argues that it has a right to protect its intellectual property with patents.

It’s sad that Nutriset’s lawyers, to quote one blogger, “like saving children only when there’s no competition from anyone who might do it more cheaply or more efficiently.”  Shockingly, of the estimated 20 million children suffering from severe malnutrition, just three percent get treatment each year.  Perhaps the lawsuit by Breedlove Foods and Mama Cares will result in greater access to this important treatment.

* Alayna Ness is a third year law student at Wake Forest University School of Law, graduating in May 2011.  She holds a Bachelor of Science in Business from Indiana University.  In the summer of 2010, she worked at the Securities and Exchange Commission in Los Angeles, California.  Ms. Ness will be taking the bar examination in Virginia and plans to practice corporate and securities law.

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