Wednesday, 4 July 2018

Isaac

Nuances of Patents and TK






A recent article in the Mail & Guardian (here) claims that the European Patent Office recognizes Jans Roosjen, a Dutch man, as the "inventor" of teff flour and associated food products.  The article also states "Roosjen also has a patent for the “invention” in the United States — though he is patently not the inventor of a product that has been around for millennia."

As is almost always the case when it comes to patents, the situation is not as straight forward as this article makes it seem.

This blogger found EPO patent EP1646287 (B1) (access it here), with the above named inventor, and the title "Processing of Teff Flour".

Claim 1 of the patent is directed to "A flour of a grain belonging to the genus Eragrostis, preferably Eragrostis tef, characterized in that the falling number of the grain at the moment of grinding is at least 250, preferably at least 300, more preferably at least 340, most preferably at least 380." In short, then, this patent doesn't cover "teff flour and associated food products" except in the case that the flour has a "falling number" greater than 250.

Without getting too technical, here's an excerpt from the patent description to explain the falling number: "The falling number obtained relates to the amount of undigested sugars in the starch. The higher the falling number, the lower the alpha-amylase activity and the fewer digested sugars are present in the grain." In less technical terms, the higher falling number apparently allows the teff products to be used in making products with more "stability" and less of an "unattractive taste and/or structure."

Interestingly, it seems that the falling number can be increased simply by storing the teff post-harvest for at least several weeks.

Regarding traditional uses of teff, the patent background section states the following: "This crop has been cultivated for human consumption in mainly Ethiopia and Eritrea for more than 5000 years...  Teff flour is traditionally used for preparing injera, a spongelike, gray pancake with a somewhat sourish taste. Injera is usually made from a flour mixture consisting of equal parts of Teff flour and wheat flour diluted with water and yeast. The diluted flour mixture is usually fermented for three to four days before it is baked."
Image result for teff
Patented teff?  Tough call. 

As for the US case, there are no related granted patents but there is a published application.  The application was abandoned in 2013 (USPTO data - see here), so there are no patent rights in the US.

There are no related patents on the African continent (according to EspaceNet data), although Ethiopia is not a member of the PCT so this blogger was not able to determine whether a related Ethiopia application was filed.

So, is injera patented?  Despite the broad statements in the Mail & Guardian article, traditional injera is not patented, as it is described as prior art in the background section of the granted patent. Instead, injera made from a very specific form of teff flour, with a specific property obtained by weeks-long storage of the teff post-harvest, is patented in Europe.

Is this an exercise of hair-splitting (or, more appropriately, teff splitting)? Possibly. This blogger finds it hard to believe that no Ethiopian prior to 2003 ever made injera with teff that had been stored for a few months. Of course, the question is actually whether such a process is documented - i.e., contained in the prior art. The simplest way forward, then, is for someone (e.g., the Ethiopian patent office) to find a reference from prior to 2003 that describes the use of stored flour in making teff. As this blogger understands EPO practice, national-level court cases would now be required to use such a reference (if found) in invalidating the patent. 

Isaac

Isaac

Subscribe via email (you'll be added to our Google Group)