US nonprofits sue over patent to feed hungry

[February 04, 2010]  CHAMPAIGN (AP) -- A pair of American nonprofits want to ramp up production in the next year of a high-protein peanut butter-like paste that could feed some of the more than 1 billion people around the world who don't have enough to eat.

But Breedlove Foods Inc. and the Mama Cares Foundation believe one thing stands in their way: U.S. patent No. 6,346,284, held by a French company and a French government research institute that are pioneers in so-called ready-to-use foods -- food intended for the severely malnourished. The American nonprofits filed a lawsuit in federal court in Washington, D.C., last month challenging the patent.

"Their patent is so broad and generic," said Mike Mellace, executive director of the Carlsbad, Calif.-based Mama Cares Foundation, a nonprofit offshoot of his Mellace Family Brands snack business. "There are numerous products on the market today that would violate this patent."

The Malaunay, France-based company, Nutriset, said it hasn't been served with the lawsuit and won't respond to its allegations.

But company spokesman Remi Vallet said Nutriset believes the patent on its Plumpy'nut paste and the restrictions it imposes on the manufacture of nut-based foods for the malnourished are essential. The limits let the company maintain quality while licensing production in the developing world -- helping alleviate hunger and create jobs, he said.

"We absolutely don't want to be in the way of the product malnourished children need," he said.

The U.N. says more than a billion of the world's people don't have enough to eat.

Vallet also said the privately held company must turn a profit to finance its research and development. The company puts about 80 percent of the roughly 8 percent profit it makes each year back into research, he said. Last year, that would have been about $5.3 million on sales of $82.7 million.

One global nutrition expert said Nutriset has a point after developing a lifesaving product that's been used in Sudan, Niger and other disaster areas. But Dr. Jim Sherry, a physician and public health professor at George Washington University, also said the patent covers a lot of ground.

"It is so broadly written," said Sherry, who worked on childhood nutrition and other issues during 17 years at the United Nations. "It covers most any combination of a whole wide range of foodstuffs."

Nutriset, he said, should see the challenge as proof of their success in drawing manufacturers to a long-ignored need.

"Having some greater production capacity makes sense," Sherry said.

Some, however, say such products aren't the best way to fight hunger. Marion Nestle, a professor of nutrition, food studies and public health at New York University, said over the long haul items such as Plumpy'nut can teach children that food only comes in a shiny wrapper from a faraway place.

"If you want to solve nutrition problems, you need to go into a society and show people how to grow foods," Nestle said.

Nutriset and the French Institute for Research and Development created Plumpy'nut in 1996. It was heavily used in the next decade by UNICEF, the World Food Program, Doctors Without Borders and other humanitarian groups.

The sweetened peanut paste is packed in foil pouches that provide 500-calorie doses of vitamins and minerals. Health experts seem to agree it's effective for feeding severely malnourished children.

The paste was distributed frequently in Darfur, where television reporter Anderson Cooper filed a 60 Minutes report in 2007 that called Plumpy'nut a "miraculous cure." The piece caught the eye of, among others, Mellace.

He started working on his own paste using the bits of cashews leftover from his snack business.

About that time in Lubbock, Texas, Breedlove Foods, a nonprofit that turns leftover vegetables and other unwanted foods into nutrition for the needy, was developing its own product using locally grown peanuts.

Both say they soon became aware of Nutriset's aggressive defense of its patent. The company isn't shy about sending warning letters to anyone developing a nut-based food for the malnourished. Last September, for example, it objected to New Jersey-based Tabatchnick Fine Foods' plans to develop ready-to-use foods. That dispute is ongoing.

Mellace and Breedlove Foods, working with Dallas-based patent lawyer Bob Chiaviello, decided that rather than try to negotiate licenses, they'd challenge the patent. Chiavello's firm, Fulbright & Jaworski, is donating its time.

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.

"We try to take every dollar that we can lay our hands on and try to benefit someone in need," Breedlove CEO David Fish said. "I have a hard time seeing that I can accomplish that if we take those precious few dollars and pay someone a royalty."

Vallet said Nutriset has licensed organizations to make Plumpy'nut, provided they pay a fee or make other, similar arrangements. Whether the company would work with Breedlove or the Mama Cares Foundation, he couldn't say.

"They never approached us," he said.

[Associated Press; By DAVID MERCER]

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.