Patent Predation

Patent Predation

Roibos Tea! Owned, Discovered by Nestle!

Predatory and patently unjust aspects of capitalism might have received a boost from President Trump’s State of the Union Tuesday, but fortunately the “socialist” Dutch judiciary was reigning it in: Ethiopia won back its ownership of its native wheat.

What’s that?

Almost ten years ago I wrote on this blog that predatory capitalism was trying to wrest control of South Africa’s native fynbos plants to western multinationals.

As far as I can tell that was the first of many subsequent attempts by big multinationals that were increasingly perfecting their DNA maneuvering skills to patent native plants. Ten years ago the battle was between the Nestle Corporation and farmers in South Africa producing Rooibos Tea.

South Africa won that battle. (And I, by the way, now drink and love to drink plain ole Rooibos Tea without ginger!)

At the time this really struck me as a predatory use of capitalism. Nestle was not confiscating the South African farms that for generations had produced Rooibos tea. It was biologically engineering the molecules that make Rooibos effective. That was what Nestle wanted to patent.

That’s perfectly logical and legal and at the time Nestle had already acquired patents in almost every other part of the world, including the U.S. The law was simple. That’s the problem: too simple.

The law was crafted, honed, adjudicated and polished to perfection long before DNA manipulation existed. It seemed to perfectly govern DNA manipulation the same way it governed pharmaceutical engineering.

It was not easy for South Africa to prevail, but they did. It convinced the Swiss courts that regardless that Nestle’s patent application was proper and legal, it was simply not just. The Swiss courts agreed and soon Nestle’s patents elsewhere around the world were reversed, too.

It was an expensive, lengthy battle. And now Ethiopia has to do it all over again for its Teff.

Teff is a very unique wheat, conceivably its own species. It likely predates the world’s main agricultural revolution in the Indus Valley seven thousand years ago. It’s a course, dark grain which I think of as a cross between millet and Kansas wheat.

It grows extremely well in the extreme climates of Ethiopia, and it is the staple food even in this modern era. Go into any Ethiopian restaurant worldwide and you’ll be hard pressed to find a menu entry that doesn’t include Teff in some form.

As with Rooibos I’m sure that Nestle knew about Teff, but the unique anti-oxidant properties of Rooibos aren’t in Teff. In fact so far nobody’s discovered anything particularly health-unique to Teff.

But food junkies started to discover it in droves a few years ago, and in many places – especially southern Europe and the Netherlands – it’s now all the rage.

A Dutchman who apparently anticipated the fad patented Teff in 2003! That’s right, he actually got a hold of some seeds, grew them, then patented them the same way Monsanto patents a hundred kinds of corn. It’s all legal.

So the battle began, and the Dutchman fought hard because the law was on his side. But like the Swiss courts nearly a decade ago, the Dutch courts recognized that the law simply wasn’t justly applicable to circumstances that now prevail in the modern area. The Dutchman’s patent was revoked.

My shari with predatory capitalism ought not be considered some communist inclination. I think China shows us better than any that there doesn’t seem to be anything better right now than capitalism for the foundation of our global economy.

But there are loopholes in anything, and they swell wide with time. Patent laws are suspect to begin with, I think. But like the 1791 2nd Amendment wrongly and unjustly used to allow wanton use of firearms, patent laws should not apply to DNA manipulation, which right now they still do.

These individual battles seem to all be going well. But they are expensive and lengthy and just as we need to shelve the 2nd Amendment into a Smithsonian file cabinet, we must redo patent law for the modern age.

And until we do, the courts — as in Switzerland and The Netherlands — must take the initiative to shake society into the reality of the moment, and not pretend that the light of the world comes from gas lamps.