Patenting Ready-to-Use-Therapeutic Food: The Plumpy’nut Controversy

Abstract

In recent years, ready-to-use therapeutic food (RUTF) has emerged as a highly successful cure for severe acute malnutrition in children, a condition that contributes to about one million child deaths per year. Advocates have raised concerns, however, that patent rights are obstructing access to needed RUTF. The first RUTF, a product called Plumpy’nut, was patented shortly after its invention. Evidence suggests that patent protection of Plumpy’nut is in fact limiting global RUTF supply and preventing RUTF price reductions. Because evidence also demonstrates that patent rents are likely to be of lesser importance for incentivizing innovation in the therapeutic food industry, solutions for broadening access should be explored, even if such solutions impinge on patent holders’ exclusive patent rights. This paper considers the prospect of using compulsory licensing to facilitate broader access to RUTF. Compulsory licensing could be a useful tool for expanding the RUTF supplier base and driving down prices. Because the circumstances leading to nutritional crises can simultaneously disrupt local manufacturing, the availability of compulsory licensing for the export of RUTF, in particular, is desirable. At present, however, the WTO international treaty regime largely prevents the export of RUTF under compulsory licensing for WTO Members. This paper argues for easing the current restrictions on the use of compulsory licensing for the export of RUTF as an act that would be consistent with the rationale and spirit of existing agreements among WTO Members relating to intellectual property and public health.