Nestlé and “Sum of Us” Argue Over Nigella Sativa Patents
“Sum of Us” Accuses Nestlé of Patenting the Fennel Flower
According to Sum of Us ( an organization “fighting for people over profits”), the Nestlé company is attempting to patent the fennel flower, which has been growing in nature for thousands of years. Sum of Us contents that Nestlé is patenting the naturally-occurring fennel flower itself, which has been used as a cure-all remedy for over a thousand years.
According to Sum of Us, the fennel flower treats everything from vomiting to fevers to skin diseases. Sum of Us also asserts that the flower has been widely available in impoverished communities across the Middle East and Asia.
Sum of Us is upset with Nestlé over Nestlé’s Patent
Sum of Us states as follows:
(1) “Nestlé is claiming to own [the fennel flower], and filing patent claims around the world to try and take control over the natural cure of the fennel flower and turn it into a costly private drug”; and
(2) “Nestlé is attempting to create a nigella sativa monopoly and gain the ability to sue anyone using it without Nestlé’s permission. Nestlé has filed patent applications — which are currently pending — around the world.
Sum of Us is asking people to sign a petition, asking Nestlé to stop trying to patent a natural cure. Their goal is to ” get [Nestlé ] to drop its patent plans before they harm anyone.”
Nestlé says Sum of Us is confused about the patent
Nestlé’s response is simple: “Nestlé is not trying to patent the fennel flower.”
Rather than claiming the flower (as it appears in nature), Nestlé is claiming a compound that can be extracted from the fennel flower or from other plants, to help treat or prevent food allergies. (The application at issue appears to be PCT/EP2010/056783).
They state that the claims will not prevent the use of the fennel flower plant for any other purposes, including in traditional and natural remedies.
How the Patent System should Handle this Dispute
The dispute between Sum of Us and Nestlé should work itself out: If Nestlé is correct, it’s claims will validly protect it’s advances in the art; If Sum of Us is correct, Nestlé’s claims would be invalid because they would not be new. Only new inventions can be patented—Sum of Us is arguing that the claims cover old compositions and methods. If this is true, the claims will not be allowed because the invention would not be different from the prior art. If they were allowed, they would be found invalid if Nestle tried to enforce them.
In either event, the patent system works to reward true invention without incentivizing people to claim what is already known in the art.
This above situation also suggests that Nestlé would have an opportunity for filing composition of mater patents, claiming particular concentrations, ratios, or formulations comprising the individual components of the essential oils.
According to wikipedia, “Nigella sativa oil contains an abundance of conjugated linoleic (18:2) acid, thymoquinone, nigellone(dithymoquinone),melanthin, nigilline, damascenine, and tannins. Nestlé’s claims recite methods. If those methods use compositions having particular ratios of these molecules, Nestlé could theorheticaly pursue patent coverage for the composition of matter.