"A few weeks ago we did not even know anything about each other," said David Fish, who heads Breedlove Food Inc, a Texas-based non-profit organization making dehydrated vegetable soup mixes that are distributed by partner NGOs in more than 60 countries.
The broad patents for Plumpy'nut, which cover most nut pastes containing micronutrients, have made unexpected bedfellows of Breedlove Food and the other challenger, Mama Cares Foundation, a non-profit company headed by Mike Mellace, owner of Mellace Family Brands, a snack food manufacturer.
The patents for Plumpy'nut - a blend of peanuts, sugar, milk powder, oil, vitamins and minerals - are owned by Nutriset, a French family-run business, and the Institute of Research for Development (IRD), a French public research institute.
Manufacturers of similar pastes have been reluctant to challenge Nutriset because the patents are so broad, but Mellace said he and Fish believed there should be "no restrictions on the development and production of life-saving food aid".
Approximately 200 million children under the age of five in the developing world suffer from stunted growth as a result of chronic maternal and childhood undernutrition, according to the UN Children's Fund (UNICEF). RUTFs like Plumpy'nut, aimed at small children, have revolutionized the treatment of severe malnutrition.
The two organizations have filed a declaratory judgment action against Nutriset and IRD in the US District Court in Columbia (where Washington is located), which hears patent issues.
They are seeking a court declaration that products developed by Mama Cares and Breedlove do not infringe the Plumpy'nut patent. A declaratory judgment action is required by the US legal system as a pre-emptive measure against a possible lawsuit.
The French firm had "learned" of the "joint complaint ... but we have yet to receive any official notification or documentation," said a statement issued to IRIN on behalf of Michel Lescanne, Nutriset's chief executive officer,
"Not knowing the specifics of the complaint, nor of the US legal procedures, we are not in a position to provide any comments on the complaint at this time. However, I would like to make it abundantly clear that this matter is being taken very seriously and all required answers will be provided in due time."
Mellace said the patents held by Nutriset and IRD had "put up roadblocks to helping some of our most vulnerable citizens."
Responding to a need
Responding to a need identified by its NGO partners, Fish said Breedlove Food had been working towards a soy and peanut-based therapeutic food for the past few years, and hoped to start production sometime this year. They planned to distribute the product in Mexico and South America.
"With our product we hope we will be able to reach all the children in need within 10 to 15 years," said Mellace, who hit on the idea of developing their RUTF while thinking of ways to use the cashew kernels and peanuts that were discarded after grading.
They also plan to help set up processing plants in some of the cashew-producing countries Africa, who send most of their produce to be processed in Asia.
The latest challenge follows a patent application for a RUTF filed by an American family-owned company, Tabatchnick Fine Foods, in a bid to open up the market for producing such foods.
These challenges have all come about as Nutriset gears up to begin manufacturing Plumpy'nut in the US, in partnership with a non-profit entity called Edesia, in February 2010. Nutriset's Lescanne said the move was intended to keep US humanitarian agencies supplied.