No, he did not. He started with peanut butter, powdered milk, and multivitamins, and ended up with a mixture of peanut butter, powdered milk, and multivitamins.
Yes, I would. Unless the unpatentable ingredients react in some way that makes them superior taken together compared to being taken separately, the company has not done anything more innovative than solving a linear equation to find out how much of what ingredients match the (also unpatentable) dietary requirements.
No, it wouldn’t. The difference is that in your example, tree sap and charcoal together have superior qualities to tree sap and charcoal individually.
This, I don’t know enought about to comment on. This is why I said,"…at leat on that argument." I don’t agree the patent should be voided because it’ll help lots of people if it’s free.
If the patent was imporperly granted under the usual IP rules, sure, cancel away. I just don’t know what the rules are.
From Wikipedia: “For patents filed on or after June 8, 1995, the patent term is 20 years from the filing date of the earliest U.S. application to which priority is claimed (excluding provisional applications).”
The only US patent I’ve been able to find for Nutriset is US Patent No. 6,346,284, which has an earliest US application date of July 14, 2000. So that patent will expire on July 14, 2020 (assuming there are no terminal disclaimers that shorten the life of the patent).
The fatal flaw in your reasoning here, IMO, is that the evidence suggests that Plumpy’nut wasn’t ridiculously obvious and that any idiot could not have come up with it. According to the article linked in the OP, even the people who don’t think Plumpy’nut should be patented agree that it’s a wonder product that saves millions of lives.
Nutella’s been around since 1963 and was based on an earlier product that dates back to 1949. Yet people have been working for decades to solve the problem of malnutrition in Africa and other places, so clearly they cared. The '284 patent itself lists 26 other US patents that were issued on nutrition and related subjects between 1963 and November 1997 (when the inventors of Plumpy’nut filed their first patent application in France), yet none of them apparently discloses the recipe for Plumpy’nut (and it’s not just that those earlier patents didn’t try to claimit - they apparently didn’t disclose it at all, at least not to a level of detail sufficient to establish obviousness to the patent examiner).
It seems to me that if “any idiot” could have created such a product at the time the inventors of Plumpy’nut filed their patent application, one of those caring people would have done it. Hell, why didn’t Bob Geldof do it back in 1984, if any idiot could, instead of putting out that stupid Christmas song?
From a legal perspective, that’s a huge blow against an argument that the patent was obvious despite what you or I may think about it. The Plumpy’nut patent may well get invalidated in court as an obvious invention. But so far, I’m not seeing any evidence that makes that conclusion inevitable.
In a general way? Sure, that type of solution is patentable if it meets all of the requirements for patentability. But in that particular case, I don’t know what the prior art would be at the time of filing the application or how the claims might be written to show that the claimed invention is novel and distinct from the prior art. But there’s nothing in the solution itself that says to me “this can’t be patented.” It could well be an effective combination of specific levels of water, sugar, and salt that nobody had tried before.
Thanks for the response, RaftPeople. I have no reason to doubt any of that, but would expect that someone made those arguments to the PTO during the re-exam process. I haven’t been following the case closely enough to know why those arguments weren’t heeded (assuming they were made).
This is a bit off topic, but I have to admit I’m getting a little sick of these topics always partially verring into “The poor people have too many kids.”
The country particularly noted in the OP’s link, Niger, is not even close to being overpopulated. Niger has 15 million people in a country twice the size of France, which has 65 million people. Even granting that much of the country’s eastern half is arid, Niger is by no stretch of the imagination overpopulated. Spain, which is equally blessed with land you can’t practically live in, has a population desnity eight times greater, and no starvation.
The reason people starve in Niger is that the country does not have anything resembling a functioning state. The government, such as it can be described, has been a shifting cast of characters who have been fighting internal wars against different groups of their own people off and on since independence. The starving children you see in the pictures aren’t starving because there are too many of them; they’re starving because one or more governmental faction is trying to murder them through starvation. Almost all African famine is the result of war or governmental incompetence. People would have starved there even if there were only half as many of them.
There is no connection between the number of people a country has, either in absolute terms or density, and the likelihood of famine. Famine is a failure of governance.
I think the thing is is that this wasn’t just a matter of coming up with a mixture of ingredients that was nutritious. It was a matter of coming up with a mixture of ingredients that was:
Shelf-stable for years
Cheap to manufacture
Light weight enough to transport cheaply
Nutritionally dense
Needed no preparation
And, on top of all that, it needed to be something that severely malnourished children could
keep down
digest easily
feed to themselves
eat even if weak, wounded, toothless, etc.
That’s an extraordinary list of criteria. There are literally thousands of potential ingredients. Coming up with the exact things in the exact proportion and the manufacturing method that allows the whole process to cost less than plain powdered milk is a tremendous accomplishment and, regardless of where one falls on the patent issue, is not something any “idiot” could do.
Because I was burning with curiosity, I tracked down the actual text of the Plumpy’Nut patent.
The ingredient list seems to allow for a huge amount of variation with the individual ingredients. This contributes even further towards my skepticism of its patent worthiness. If it required a very specific proportion of its components to work effectively I’d be more inclined to judge it as a unique product.
They did invalidate 22 of 26 claims, although a ridiculous number of years later. Still, they ultimately allowed some claims which means their bar is set way too low.
So you are asserting that no one could make a medically competitive product from any other material than peanut butter? Our body has a specific and undeniable requirement for peanut butter?
As far as I can tell, Pumpy’nut is not for sale to individuals, only to hunger relief organizations. So I can’t buy any to bring with me on camping trips, and mixing my own homemade version before 2019 puts me at risk of federal law enforcement officials kicking down my door . That’s the worst tragedy behind all this (well, besides all the people dying from malnutrition).
The part you quoted is from the patent’s specification, which describes the invention and how to make it, so that, when the patent expires, practitioners in the art can replicate it. But the actual invention (inventions, actually) of the patent is in the claims, which are, in this case, much narrower than the broader description of the specification. (I like to think of the specification, which includes the written description and any drawings, as a block of marble, while the claims are the inventive bits carved out of that block of marble). Everything in the claims has to have support in the written description (except for things that one would expect everyone in the relevant industry to know).
The specific part you quoted relates to a part of the patented invention that appears in claim 14:
But note that claim 14 is written “according to claim 1,” so claim 14 includes all of those limitations, as well:
So the invention of claim 14 is not just the bit you quoted, but includes all of the requirements from both claim 1 and claim 14. That’s a pretty long list of requirements, all of which serve to narrow the scope of the invention. And in order for anyone to be found liable for infringing claim 14, they would have to meet the requirements of both claims as well.
You said that it’s formulation is simply giving the body what it needs. If the body could need some other formulation just as well, then obviously this formulation has its own unique properties–like cost of production.
The human body does not specifically need peanut butter and powdered milk. Nutrients, yes, but not peanut butter and powdered milk. The choice of these ingredients was presumably based on business considerations more than on medical. Tying together business and medicine in a way to be able to beat the pants off of competitors who tried to use apple sauce as a bulking agent is innovative.
I guess I don’t see where that much carving is going on between the specification and the claims. The inclusion of claim 1 may add to the length of the list of requirements, but that doesn’t challenge Blalron’s contention that each of the requirements is still pretty damned wide.
I may be a layman rather than a patent lawyer, but I have to come down firmly on the side of the notion that this is far too unspecific a description of the thing invented to deserve a patent.
Remember that, in a democracy, the laws aren’t something for an elite to pronounce and for the rest of us to obey. It may increasingly be happening that way, as economic elites have been allowed to hijack the lawmaking process in quite a number of areas, intellectual property quite definitely among them.
Laws are only workable if, over time, they have the support of the governed. Maybe most people, if they thought about it, would support the idea that a patent shouldn’t just protect a product from competition from nearly identical products, but also from any new invention in the general ballpark. But I have a hard time believing that.
An interesting item, oddly I have had some (highly indirect) business connection here:
First, jumping ahead of the sturm and drang, I think Chronos most usefully noted (but was ignored):
There are other, non-peanut or alternative non-infringing approaches being developed. I was actually asked to look at one. Not really my thing, so I gave it a miss, but the majority of responses seem to assume that this stuff is … well so very unique or whatnot. It’s bloody damn useful apparently for famine situations, but not the sole game.
I’d also note that producing emergency processed food stocks is a really variable business, so a bit risky. After all, one is not doing well if there are no famines, and despite many comments assuming all of Africa is … what Eithiopia c. 1984, it ain’t.
On the market side
Yeah, destroying the local farmers. And destroying local - well African based - production which has some potential (is the potential worth the extra cost, not sure) to help build up African based capacity.
And as noted, it’s not the only thing that can be used.
It is worth noting that the argument is based on the observed problem of US food aide doing just that, as Laudenum noted:
Systematic collapse of the local production market. Not mere economic theory, been observed.
Local production, by the way, I believe is “African based” as it is not possible to be hyper-local to the very locality.
One needs to be a wee bit careful in how one reads “local.”
On the Africa as Wasteland Front
By courts. They do have those in Africa.
Of course also on the American side or European side by lawsuits against patent breakers in their jurisdictions.
Usual way one defends patents.
A remark here:
Subsistence.
Having more children under subsistence farming makes sense traditionally, but like anything is subject to diminishing and eventually negative returns.
That is clearly the case under traditional subsistence farming in much of SSA and explains a great deal of rural to urban flight. Land can’t be squeezed any more, over-intensive use begins a nasty process of degrading returns and increasing crop failures.
The traditional approach once upon a time made sense. It doesn’t any more.
Well, let us put a nuance around this, this is used in Famine Situations, not for ordinary circumstances. But killing off a fledgling industry - as always “to help the Children” - certainly doesn’t help build a more sustainable future although the production isn’t in the same exact spot as the famine.
Peanuts are farmed in specific regions and very evidently in a famine region - usually due to combo of war and drought - farming anything is a real problem… thus the famine actually.
The proper question is to what degree can the peanuts and other ingredients be produced in Africa, and sustainably. One has to be realistic about “rapidly expanded” on a continental level, but then recall this is not food intended for ordinary consumption. Seems to me many of you are getting a somewhat exagerated idea of its application.
No overseas transport costs are trivial compared to in-country costs. Road transport in most of SSA Africa into rural areas is horrendously, fiendishly expensive for a variety of reasons
Eh, that is a vast over-simplification, as most rural poor are self-producers. Except of course in case of crop failure on a general basis (drought and war, drought and war - well also crop disease).
On Africa Wasteland
Let’s be real, you know fuck all about SSA.
SSA - even in some of the crappiest areas - has capacity for powdered vitamins and usually milk.
There is no reason to presume that on a sub-regional basis this can not be met in part if not in total.
Of course, that is a question to be answered by data, as I am not sure the French co is in fact doing so on a justificable % basis.
As Capt pointed out.
Absurd response. The buyer is not the bloody poor, the buyer is the producers of the bloody emergency product (and then subsequently the aid organisations, as this is not a retail product).
Each separate requirement narrows the scope of the claim by adding an extra level of specificity to practice (or infringe) the patent. For example, the ingredients listed in claim 14 must be combined within the individual ranges given and must also, when combined:
a. contain at most 10% by weight of water;
b. develop an osmolality of less than 100 mOsm/kg after immersion in four times its own volume of water;
c. be stable to oxidation;
d. comprise a mixture of food-grade products, said mixture being coated with at least one lipid-rich substance derived from oleaginous seeds; and
e. said mixture must also be enriched in vitamins, soluble or insoluble mineral salts, enzymes or mixtures thereof.
So each separate limitation chips away at the broader disclosure by excluding those parts that lie outside the limitations. Got more than 10% water weight? You’re out. Not stable to oxidation? You’re out. And so on.
I don’t think anyone in this thread is arguing that laws are “something for an elite to pronounce and for the rest of us to obey.” Certainly I’m not.
That’s the worst tragedy behind all this (well, besides all the people dying from malnutrition).