Intellectual Property Law

Another Step in the IP/Lifesaving Debate

By 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.

Full post as published by Copyfight - The Politics of IP on April 13, 2010 (boomark / email).