E-DRUG: MSF open letter to Nutriset - re enforcing its patent on humanitarian foods
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Please find below an open letter that MSF sent to Nutriset in regards to
their intellectual property strategy for ready-to-use-foods. These products
are recommended by WHO/UNICEF/WFP for treatment of acute malnutrition and
widely used in humanitarian contexts. This letter was sent on the occasion
of a letter that Nutriset had sent to Compact, another producer of
humanitarian food products, and distributed widely.
.....
Mrs Isabelle Lescanne
General Manager
Nutriset
BP 35 â Le Bois Ricard
76 770 Malaunay
France
Geneva, November 13, 2009
Dear Mrs Lescanne,
For some time MSF has requested Nutriset to establish a more flexible
licensing policy. General intellectual property principles were agreed
among participants at a workshop on 'Ready To Use Food Production and Use'
in Rome in 2007. [1] In our conversations with you earlier this year you
indicated that Nutriset was willing to publish and communicate its
voluntary licensing policy and key licensing terms.
The need for humanitarian nutritional products is vast. These products will
need to be of good quality and at the lowest possible cost. There needs to
be more than one world wide supplier to ensure a secure supply chain at all
times and allow for surge capacity for large nutritional emergencies. The
intellectual property pertaining to nutritional products of a humanitarian
nature must therefore be handled differently from that pertaining to
commercial products.
As you know, we believe that, in the humanitarian field of nutrition,
patents should be filed only on an exceptional basis, and when they exist,
licensing agreements should be offered to third parties on flexible terms
and conditions, so as to ensure the widest possible availability of
nutritional products of a humanitarian nature.
Your website, states that 'In accordance with the commitment at the heart
of its mandate - to facilitate the access to and availability of products
capable of improving the nutritional status of at-risk children and adults
in the countries of the South, Nutriset operates an open management policy
with regard to its intellectual property rights, and does not seek to block
initiatives.'
We have become aware of a letter that you sent to Compact, another well
established producer of food products for humanitarian use, on October 29,
2009 and circulated widely, which appears to contradict this policy. The
letter refers to your patent in Kenya and threatens Compact with legal
action if they fail to stop the supply of RUTF to Kenya. In addition, you
have demanded that they cease to store products in Denmark and Kenya for
onward transmission to other countries in Africa. These demands amount to
an attempt to block the supply of RUTF by reliance on your intellectual
property rights.
You seek to use patent rights in countries of transit and storage to
prevent supply even where there is no patent in the export and destination
country. Such a demand creates additional and unnecessary trade barriers
that can impact affordability and availability as it may force suppliers to
take potentially more expensive transit routes which may cause considerable
delay in procurement activities. In addition adequate storage facilities
are not available in a number of countries.
The issue of seeking to use patent rights in transit countries to prevent
the trade in lifesaving products has recent been under scrutiny because of
the detention of generic medicines transiting through various European
countries under EU wide customs regulations. MSF has condemned those
detentions, and considers that such actions breach fundamental commitments
to ensure access to medicines contained in the TRIPS agreement. [2] India,
one of the exporting countries, has stated that it will make the issue a
subject of a complaint to the World Trade Organisation. Even the commercial
entities involved have themselves recognised that it is not appropriate
practice.
The European federation of pharmaceutical industries and association
(EFPIA) stated 'EFPIA, the voice of the pharmaceutical industry in Europe,
wishes to clarify that it is neither the policy nor practice of our members
to encourage Member States to use the powers of detention available to them
to prevent the flow of legitimate generic products from manufacturer to
customer outside the EU. This applies even where goods transit through EU
countries where intellectual property legislation could be applied'.[3]
MSF considers that threatening to use patent rights in transit countries is
equally unacceptable in relation to RUTF, and is clearly inconsistent with
a humanitarian licensing policy.
Finally, I would like to point out that in your letter to Compact you are
confusing allegations of patent infringement with counterfeiting.
Counterfeiting is a trademark infringement, e.g. of a Nutriset brand name,
which is different from patent infringement. We are not aware of any cases
of counterfeiting of Nutriset products.
Nutriset has been asked repeatedly by us and others for simple, reasonable
licensing terms for legitimate producers. We are still waiting for such
terms to be made available. Instead it appears that you have decided to
adopt a policy of aggressive protection of your patents that could be
considered an abuse in relation to humanitarian products.
In other areas such aggressive use of patents has lead to challenges to the
patent or Government action to remove patent barriers to production or
supply.
We ask you to urgently revise your intellectual property strategy.
Yours sincerely,
Tido von Schoen-Angerer, MD, MSc
Executive Director, Campaign for Access to Essential Medicines
Medecins Sans Frontieres International
[2]
http://www.msfaccess.org/fileadmin/user_upload/medinnov_accesspatents/EC%20letters_01.pdf
and
http://www.msfaccess.org/main/access-patents/msf-workshop-at-wto-public-forum/
[3] http://www.efpia.eu/Content/Default.asp?PageID=559&DocID=6574
cc Stéphane Raud, Directeur du département expertise et valorisation, IRD
Kind regards,
Michelle Vilk
Coordination and Communications Assistant
Medecins Sans Frontieres
Campaign for Access to Essential Medicines
Rue de Lausanne 78
1211 Geneva, Switzerland
Tel: + 41(0) 22 849 89 02
Fax: + 41 (0) 22 849 84 04
michelle.vilk@geneva.msf.org