Nestlé and “Sum of Us” Argue Over Nigella Sativa Patents

Sum of Us is accusing Nestlé of patenting the fennel flower

Sum of Us is accusing Nestlé of patenting the fennel flower

“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

Fennel FlowerSum 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.

Should Nestle Get a Patent

Should Nestle Get a Patent

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.

 

 

25 Responses to “Nestlé and “Sum of Us” Argue Over Nigella Sativa Patents”

  1. Darlene Turner says:

    Nestle has no right to make such claims.

    • Andrew Chadeayne says:

      Hi Darlene,

      Thank you for your comment. What bothers you about the claim made in this case? Do you feel that Nestle should not be able to own something found in nature, even if turned into a new form NOT found in nature. In any event, thank you for reading and taking the time to comment.

  2. toby says:

    This is an interesting argument – there’s a lot of heat about this idea because people are worried it may set a precedent in Neslté and other companies moving towards patenting things that are found in plants.

    I think the general fear is the fact that Neslté, who have been shown to put business before people are pushing towards ‘something’ that’s not fully disclosed at this stage.

    From the explanation in the above ariticle, it seems like Nestlé are spending a lot of money to try and achieve something that’s unachievable. If that’s the case, then what’s the agenda of them trying to do it?

    • Lucy Humphreys says:

      Nigella sativa oil is a powerful disease and cancer cure akin to medical marijuana. If they can patent the active ingredients from the oil they can make a fortune .

  3. March says:

    Despite what they say that they are trying to patent, I don’t have a lot of trust in Nestle. In general, I don’t have a lot of trust in companies patenting the next new cure for some sickness as I don’t know how far large companies will go.

  4. Uhhhh says:

    This is not new. Where exactly do people think medicine comes from? It’s not like anything is wholly created out of magic fairy dust! There are literally hundreds of medicines on the market today that have been patented that find some – or many – of their origins in the natural world. This is just some “holistic” company trying to drive attention to themselves by playing David to Nestle’s Goliath. They probably KNOW they’re not going to make any headway, and certainly must know the falseness of their own claim. It’s the same game as always, on both sides. Sum of Us knows their claim is false and ineffectual, but is trying to drive a broader agenda (as you’ll see from their site – their most popular links seem to be founded on outrageous claims that are far less than the headlines make them appear). This isn’t some new scheme Nestle is coming up with that no one else has ever done before.

    • Yan says:

      But doesn’t this mean that if in the future people or other companies will want to make medicine out of these components they will be hindered by doing so because Nestlé owns the composition?
      That would be utter madness.
      Imagine someone would have patented caffeine before companies started to add it in some products, wouldn’t that mean that each of these products would have to pay a contribution to the patentee now?

      • Andrew Chadeayne says:

        Hi Yan,

        The patent at issue in this article appears directed only to METHOD claims. But, I do not see why the first company to purify the composition couldn’t pursue a composition of matter claim. Moreover, it should be possible to patent new formulations having special amounts of the components, combined with other things.

        In terms of your caffeine example, the answer is yes. If the first person to isolate caffeine pursued a patent on that purified composition of matter, they would have been entitled to royalties from anyone using purified caffeine in other formulations. That patent would only last 20 years from filing. Arguably, that period of limited exclusivity would be appropriate since the patentee would have brought purified caffeine into a world that previously lacked it. (Of course, coffee and other naturally caffeinated products would be unaffected by the patent because those would be un-purified compositions).

        Thanks for contributing to this interesting conversation.

        • Jordan says:

          Method claims are all good. Fair game.
          Composition of Matter claims (especially those that rely on Parke-Davis) are probably going to fail in light of Myriad. Parke-Davis is not a realistic case and the sooner SCOTUS explicitly rejects it and petitioners stop relying on it, the better.

        • Josh says:

          That’s the point, caffeine can’t be patented now because it’s not a new method. If what Nestlé wants to patent is truly a traditional composition then a patent won’t apply.

  5. dan watts says:

    Sounds fishy.

  6. Lyle says:

    If this means that we could potentially get to a situation where poor communities or anyone in the world for that matter loses the right to use fennel as a preventative of food allergies then it is gross and wrong. I for one believe that nobody should have the right to lay claim to something that occurs naturally FULL STOP. So tribes in the amazon have been using a particular plant for its healing properties for thousands of years, long before the word ‘patent’ ever existed, now all of a sudden some western company comes along and slaps ownership on it, thereby gaining the right to use the law to stop anyone but them using it. Pure lunacy.

    With corporations of this size it is always a matter of greed. If Nestle is within it’s rights to file this patent then you can rest assured that it’s only because they haven’t found some sneaky way to get around it. We know from previous experience that Nestle is amongst the worst of them and I doubt anything has changed in that regard.

  7. Mercedes Schrodinger says:

    Nestle cannot, and is not attempting to, patent fennel flowers in their natural form. Presumably, tribes in the Amazon do not use billion dollar labs to isolate the active ingredients using sophisticated chemical extraction techniques. At most, the processing done by natural medicine providers amounts to grinding it up with a couple of stones and distilling it in oil or steeping it to make tea. I guarantee that Nestle is not attempting to patent the process of isolating the active ingredients through simple distillation or tea making.

    Don’t get me wrong. I hate Nestle as much as the next anti-corporate activist. I hate what they’ve done, and continue to do, in third world countries. First it was getting women to quit breastfeeding and use formula, which they could only mix with dirty water, thus killing many babies. Now they take groundwater out of areas that already have too little water to support their populations, and purify it and sell it to rich people in the area, leaving the poor with nothing but sludge and dried-up wells. That’s sick.

    But I have at least a basic amount of faith in the patent system. It’s impossible to patent anything that you didn’t invent. You can only patent a method for isolating compounds if that method has not been used before. I’m 100% certain that Nestle did not invent the distillation processes used to isolate compounds from hundreds of thousands of medicinal plants and fungi used throughout the world, thus this method of extraction will not be affected by Nestle’s patent, even if someone were to distill it, bottle it, and sell it as extract. So calm down.

  8. Samuel Arkand says:

    There are different things that can be talked about:
    (1) A patent on the fennel flower, which would prevent others from using the fennel flower (nigella sativa) during the duration of the patent. This is definitely NOT what Nestlé is trying to patent because that would amount to claiming a naturally-occurring product, which is NOT patentable. Claiming that Nestlé is trying to patent the fennel flower just weakens the arguments of the opponents by showing they do not understand the basics of the patent system.
    (2) A patent on a new WAY OF EXTRACTING the active ingredient of the fennel flower (thymoquinone), which would prevent others from producing thymoquinone in the same or similar ways. This is fair game in the patent system and if the method is novel, there is little chance of preventing Nestlé from patenting this reasonable claim.
    (3) A patent on the USE of thymoquinone or of the fennel flower to prevent allergies, which would prevent others from using thymoquinone or fennel flower extracts for the same goal. This is where things become interesting. Patent claims are usually broken down in a long list of related claims. The patent office then accepts or rejects some of these claims. If the claim is not novel, which means that there is documentation that somebody else had “invented” this before, then the claim is reject. Several lines can be followed: Can it be demonstrated that the fennel flower was used to treat allergies before? If so, Nestlé will not be able to prevent people from continuing to use fennel flowers to treat allergies. Can it be demonstrated that it was known that thymoquinone could be used to treat allergies? Then the claim of using thymoquinone would be void. For example, the following scientific paper would weaken the claim of Nestlé: http://www.ncbi.nlm.nih.gov/pubmed/7680846. Nestlé is aware of that because their most recent paper (http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0039841) refers to this older paper. But patent applications are tricky things, so what SumOfUs should do is find good patent lawyers and possibly transmit this prior art and its argumentation to the patent offices. On its face, I would tend to agree with the following analysis (http://www.cbd.int/abs/side-events/icnp2/twn-icnp2-no5-Nestle-Nigella.pdf) and say that the claims of Nestlé (http://patentscope.wipo.int/search/en/detail.jsf?docId=WO2010133574&recNum=68&maxRec=195&office&prevFilter&sortOption&queryString=IC%2FA61K-36%2F53&tab=PCT+Biblio) are probably invalid.

  9. Nestle è una criminale afarista ,,,,

  10. l.butcher says:

    Hmm in a stunning example of utter hypocrisy, the United States federal government holds a “medical patent” for all cannabinoids — a patent which it has held since 2003.
    .
    Definitions in this patent re cannabinoid:
    “As used herein, a ‘cannabinoid’ is a chemical compound (such as cannabinol, THC or cannabidiol) that is found in the plant species Cannabis sativa (marijuana), and metabolites and synthetic analogues thereof that may or may not have psychoactive properties.” So apparently is IS possible to patent the use of a plant and I don’t really think it is all that far fetched that another corporation such as Nestle might be trying to pull the same stunt

  11. Ed Smith says:

    This is not about Fennel flowers. It’s about the seeds of Nigella sativa. Fennel is Foeniculum vulgare … a very different plant with very different chemistry and medicinal properties.

  12. Fiona Gilsenan says:

    The photo you show in this post is not Nigella saliva, it is Foeniculum. You might want to change that and remember to look up plants by their botanical names for accuracy.

  13. DM says:

    You have a picture of the wrong Fennel plant 🙂

    The fennel plant in question can be see on Nestle’s page on the matter –
    http://www.nestle.com/aboutus/ask-nestle/answers/is-nestle-trying-to-patent-fennel-flower-nigella-sativa

    d

  14. JJ says:

    Excellent conversation. I think that whatever the patent laws currently allow, one must ALWAYS consider that predatory corporations such as Nestle and Monsanto, will employ all the means they have at their disposal to generate more money….and that the means in these cases often involve finding very sneaky and ‘novel’ ways around already existing laws. They re-interpret, lobby, sue and re-create new laws and practices that will give them their desired outcome. Before the bureaucracy can catch its breath….the corporations have changed the game. I can hope that the Patent Offices are smarter than the predators….but when I look at Monsanto and all it has been able to accomplish in the name of greed, I am not comforted. OWNING the rights to seed and then prosecuting farmers around the world who might only have had that seed BLOW into their field from nearby…..this is the definition of a predatory human machine. I say that in these days, one must act with EXTREME and utter caution when granting predatory companies any edge……they use it to cut, and cut sharply.

  15. kona coffee says:

    Now I am going to do my breakfast, after having my breakfast
    coming yet again to read other news.

  16. Louis Cook says:

    Sum Of Us seems to enjoy making misleading petition names (and petitions themselves). Nestle is not trying to patent the use of nigella sativa, but to patent their research so others cannot use it to profit. It’s not stopping anyone from using it or making their OWN research about nigella sativa. Nestle has EVERY right to protect their own SCIENTIFIC research. Claims from (ancient) tradition are NOT scientific research. Get over it. What this means is that no one can use Nestle’s research to advertise and/or sell their product and profit off of it. I do believe all scientific research should be public knowledge, but no one should profit off it without giving monetary credit to who did the ACTUAL scientific research, if that company/person wants it that way. Science costs money, people.

  17. Aussie Worker says:

    Nestle is an evil company that doesnt respect anyone or anything, if they could patent air they would the evil scum that they are.

    Nigella Sativa has been used for centuries by Middle Easterners and “Cold Pressed” and various other methods used to extract the healing compounds of its seed which evil Nestle company is trying to patent

    They are trying to lay claim to something that has been used for centuries as if they discovered. Even there is a saying of Prophet Muhammad “…use Black Cumin regularly for in it is a healing for everything but death” and subsequently has been used by Arabs and surrounding nations for centuries

    Boycott Nestle!!! they are the enemies of humans and the world for filthy profits

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