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Somalia famine revives debate: is it acceptable to patent aid?

Somalia's famine has boosted demand for the malnutrition treatment Plumpy'nut. But a patent curtails production – and has sparked intense debate over balancing business interests with humanitarian need.

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Local production eases poverty

A benefit of local production, says Maria Kasparian, director of operations for Edesia, the only US Nutri­set franchise, is that it creates jobs and a market for local agricultural products, chipping away at malnutrition's contributing factors, such as poverty.

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It's an uncommon defense for a patent, Mr. Barder of the Center for Global Development says. Typically, companies argue that a patent is needed to recoup investment in research and development and is justified, because if people know they will make up their costs, they will be more motivated to innovate.

But the trouble with Nutriset's argument for its patent is twofold, Barder says: Supporting local development, while a worthy long-term goal, should not take precedence over responding quickly to life-threatening situations like the famine in Somalia. In this case, he says, that means importing RUTFs from the industrialized world.

Barder also takes issue with Nutriset's use of a patent to promote an economic development "ideology." If developing countries are ser­ious about supporting local producers, they can opt not to import Nutriset's products, he says. Where RUTFs can be made and sold is not a decision for Nutriset to make.

Nutriset says that the limitations are temporary and that it will be less protective as local production expands and costs go down.

If that's the case, there's an easy solution for covering initial costs – a loan, says Barder: "Many companies make a loss at the beginning. You don't need a patent for that."

'The patent is definitely a barrier'

MSF has also been a vocal opponent of Nutriset's patent. Doyon insists that the company's control of the market has limited production and supply of RUTFs. He points to the way licensed producers are scrambling to fill the orders flooding in and the fact that Nutriset has temporarily relaxed its patent restriction in Kenya, where there is already a local producer. "It's good that they make this kind of gesture," Doyon says, but "the patent is definitely a barrier. Otherwise you wouldn't need to remove it."

Shanelle Hall, UNICEF's supply division director, says that Nutriset has readily granted exceptions whenever the need has arisen. Should Nutriset ever stand in the way, UNICEF has what Ms. Hall calls a "release valve" – the Agreement on Trade-Related Aspects of Intellectual Property.

The agreement allows governments to grant licenses or to import generics without the patent owner's consent in emergency situations.

According to Adeline Lescanne, the deputy general manager for Nutriset, the French factory produced 30,000 metric tons of Plumpy'nut and Nutriset's other nutritional supplements in 2010, compared with 1,700 in the United States and 6,500 from all the factories making Nutriset's products in the developing world combined.

But Edesia's Ms. Kasparian says the number of producers is secondary. The major barrier is funding, which she says is consistently too low – only enough for 5 to 10 percent of the children in need. Even if more firms produced more Plumpy'nut, aid groups currently don't have the money to buy more. Only if funding expands drastically, she says, "will the patent become immoral and need to change."

Easing the tension between the profit motive that spurs innovation and the need to keep humanitarian products cheap is possible, says Barder, who has researched this dilemma in the vaccine world. One way is an "advance market commitment," in which a sponsor promises to buy a set amount of vaccine, say, at a high price and sell it at a lower one, absorbing the difference. In turn, the vaccine company pledges to provide further vaccines at a lower price for a set period. Another idea is a cash prize that acts like a grant.

But the best solution is probably better anticipation of food crises and the marshaling of resources in advance to better address them.

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