[Ip-health] MSF open letter to Nutriset - Nutriset enforcing its patent on humanitarian ready-to-use-foods

Mon Nov 16 06:49:27 2009

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Please find below an open letter that MSF sent to Nutriset in regards to=0D
their intellectual property strategy for ready-to-use-foods. These products=
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are recommended by WHO/UNICEF/WFP for treatment of acute malnutrition and=
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widely used in humanitarian contexts. This letter was sent on the occasion=
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of a letter that Nutriset had sent to Compact, another producer of=0D
humanitarian food products, and distributed widely.=0D
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Mrs Isabelle Lescanne=0D
General Manager=0D
Nutriset=0D
BP 35 =E2=80=93 Le Bois Ricard=0D
76 770 Malaunay=0D
France=0D
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Geneva, November 13, 2009=0D
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Dear Mrs Lescanne,=0D
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For some time MSF has requested Nutriset to establish a more flexible=0D
licensing policy. General intellectual property principles were agreed=0D
among participants at a workshop on =E2=80=98Ready To Use Food Production a=
nd Use=E2=80=99=0D
in Rome in 2007. [1] In our conversations with you earlier this year you=0D
indicated that Nutriset was willing to publish and communicate its=0D
voluntary licensing policy and key licensing terms.=0D
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The need for humanitarian nutritional products is vast. These products will=
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need to be of good quality and at the lowest possible cost. There needs to=
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be more than one world wide supplier to ensure a secure supply chain at all=
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times and allow for surge capacity for large nutritional emergencies. The=
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intellectual property pertaining to nutritional products of a humanitarian=
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nature must therefore be handled differently from that pertaining to=0D
commercial products.=0D
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As you know, we believe that, in the humanitarian field of nutrition,=0D
patents should be filed only on an exceptional basis, and when they exist,=
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licensing agreements should be offered to third parties on flexible terms=
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and conditions, so as to ensure the widest possible availability of=0D
nutritional products of a humanitarian nature.=0D
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Your website, states that =C2=B4In accordance with the commitment at the he=
art=0D
of its mandate - to facilitate the access to and availability of products=
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capable of improving the nutritional status of at-risk children and adults=
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in the countries of the South =E2=80=93 Nutriset operates an open managemen=
t policy=0D
with regard to its intellectual property rights, and does not seek to block=
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initiatives.=E2=80=99=0D
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We have become aware of a letter that you sent to Compact, another well=0D
established producer of food products for humanitarian use, on October 29,=
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2009 and circulated widely, which appears to contradict this policy. The=0D
letter refers to your patent in Kenya and threatens Compact with legal=0D
action if they fail to stop the supply of RUTF to Kenya. In addition, you=
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have demanded that they cease to store products in Denmark and Kenya for=0D
onward transmission to other countries in Africa. These demands amount to=
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an attempt to block the supply of RUTF by reliance on your intellectual=0D
property rights.=0D
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You seek to use patent rights in countries of transit and storage to=0D
prevent supply even where there is no patent in the export and destination=
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country. Such a demand creates additional and unnecessary trade barriers=0D
that can impact affordability and availability as it may force suppliers to=
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take potentially more expensive transit routes which may cause considerable=
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delay in procurement activities. In addition adequate storage facilities=0D
are not available in a number of countries.=0D
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The issue of seeking to use patent rights in transit countries to prevent=
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the trade in lifesaving products has recent been under scrutiny because of=
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the detention of generic medicines transiting through various European=0D
countries under EU wide customs regulations. MSF has condemned those=0D
detentions, and considers that such actions breach fundamental commitments=
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to ensure access to medicines contained in the TRIPS agreement. [2] India,=
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one of the exporting countries, has stated that it will make the issue a=0D
subject of a complaint to the World Trade Organisation. Even the commercial=
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entities involved have themselves recognised that it is not appropriate=0D
practice.=0D
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The European federation of pharmaceutical industries and association=0D
(EFPIA) stated =E2=80=9CEFPIA, the voice of the pharmaceutical industry in =
Europe,=0D
wishes to clarify that it is neither the policy nor practice of our members=
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to encourage Member States to use the powers of detention available to them=
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to prevent the flow of legitimate generic products from manufacturer to=0D
customer outside the EU. This applies even where goods transit through EU=
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countries where intellectual property legislation could be applied=E2=80=9D=
.[3]=0D
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MSF considers that threatening to use patent rights in transit countries is=
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equally unacceptable in relation to RUTF, and is clearly inconsistent with=
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a humanitarian licensing policy.=0D
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Finally, I would like to point out that in your letter to Compact you are=
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confusing allegations of patent infringement with counterfeiting.=0D
Counterfeiting is a trademark infringement, e.g. of a Nutriset brand name,=
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which is different from patent infringement. We are not aware of any cases=
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of counterfeiting of Nutriset products.=0D
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Nutriset has been asked repeatedly by us and others for simple, reasonable=
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licensing terms for legitimate producers. We are still waiting for such=0D
terms to be made available.  Instead it appears that you have decided to=0D
adopt a policy of aggressive protection of your patents that could be=0D
considered an abuse in relation to humanitarian products.=0D
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In other areas such aggressive use of patents has lead to challenges to the=
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patent or Government action to remove patent barriers to production or=0D
supply.=0D
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We ask you to urgently revise your intellectual property strategy.=0D
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Yours sincerely,=0D
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Tido von Schoen-Angerer, MD, MSc=0D
Executive Director, Campaign for Access to Essential Medicines=0D
M=C3=A9decins Sans Fronti=C3=A8res International=0D
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[1]=0D
http://www.msfaccess.org/fileadmin/user_upload/medinnov_accesspatents/Draft=
RomePrinciplesIPand%20nut1.0.pdf=0D
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[2]=0D
http://www.msfaccess.org/fileadmin/user_upload/medinnov_accesspatents/EC%20=
letters_01.pdf=0D
  and=0D
http://www.msfaccess.org/main/access-patents/msf-workshop-at-wto-public-for=
um/=0D
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[3] http://www.efpia.eu/Content/Default.asp?PageID=3D559&DocID=3D6574=0D
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cc St=C3=A9phane Raud, Directeur du d=C3=A9partement expertise et valorisat=
ion, IRD=0D
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Kind regards,=0D
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Michelle Vilk=0D
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Coordination and Communications Assistant=0D
M=C3=A9decins Sans Fronti=C3=A8res=0D
Campaign for Access to Essential Medicines=0D
Rue de Lausanne 78=0D
1211 Geneva, Switzerland=0D
Tel: + 41(0) 22 849 89 02=0D
Fax: + 41 (0) 22 849 84 04=0D
michelle.vilk@geneva.msf.org=0D
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www.msfaccess.org=0D
Follow us on Twitter:  http://twitter.com/MSF_access=0D
Join us on http://www.facebook.com/MSFaccess=0D
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Make It Happen =E2=80=93 Tell drug company bosses to share their patents an=
d get=0D
drugs for people living with HIV=0D
https://www.actionformsfaccess.org/