Fennel Flower and Nestle Patent

History of The Fennel Flower: Nigella sativa, sometimes known as the fennel flower, has been used as a general tonic for over a thousand years. It has been extensively available in disadvantaged communities across the Middle East and Asia, treating everything from vomiting to fevers to skin problems.

Stop trying to patent a natural cure, Nestlé!: Nestle has been chastised for filing a patent application to protect an extraction of fennel flower seed, which comes from a plant that humans have utilised since the 10th century. According to the group, Nestle allegedly aims to profit from the fennel flower, which has been used as a homoeopathic cure for thousands of years.

Nestlé scientists claimed to have “discovered” what much of the world has known for millennia: that Nigella sativa extract might be used for “nutritional therapies in humans with food allergy” in a paper released last year. Rather than developing an artificial alternative or battling to ensure that the medicine was widely available, Nestlé aims to establish a nigella sativa monopoly, allowing it to sue anyone who uses it without Nestlé’s consent.

Nestlé has filed patent applications all across the world that are now pending. Researchers in underdeveloped countries such as Egypt and Pakistan had already published studies on the same healing powers Nestlé claims as its own before Nestlé’s outrageous patent claim.

The patent filing has enraged various organisations, including Sum of Us, which claims that Nestle made up the idea that Nigella sativa, the botanical name for fennel flower, might be used to treat food allergies when it has been used for hundreds of years.

Clarification From Nestlé:

Nestlé responds on its website by claiming that it is not attempting to patent the fennel flower. Instead, it maintains that its “patent application relates specifically to the precise manner that thymoquinone — a chemical isolated from the seed of the fennel flower – interacts with opioid receptors in the body and aids in the decrease of food allergies.”

“The fennel flower… is a natural species, and nobody could, or should, benefit from ownership over it,”

Nestle continues, adding that “we completely embrace the principle of reasonable passage and benefit-sharing when it gets to the raw materials we use.”

The patent fight has sparked discussion about the patentability of natural materials in general. This issue holds much attention recently. The United States Supreme Court declared in Association for Molecular Pathology v. Myriad Genetics that human DNA could not be patented in its natural state because it is a “product of nature.” However, the court included a caveat to its decision, stating that synthetic or human-made DNA could be patented. Since then, the global debate over the distinction between nature and science has heated up, and incidents like these continue to raise concerns about the role of intellectual property protection.

According to Indian Patent Law: Section 3(P) of the Indian Patent states that “an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of a traditionally known component or components is not an invention.”

The pre-existing knowledge or traditional knowledge is not patentable in Indian Patent Law. For example, turmeric’s antiseptic properties for healing wounds are used, and another example is the pesticidal and insecticidal properties of neem.

During the prosecution, the Controller investigates the application using the Traditional Knowledge Digital Library (TKDL) and other resources to decide whether the claimed subject matter falls within the purview of this provision.

During the examination/prosecution of such application, some guiding principles are considered to assess the novelty and inventive step:

Principle 1: If the subject matter as claimed relates to extracts/alkaloids and/or isolation of active ingredients of plants,  which are naturally/inherently present in plants,  such claims cannot be considered as a novel and/or inventive when the use of such plants is pre-known as part of teachings of  Traditional  Knowledge.

Principle 2:  Combination of plants with known-therapeutic effect with further plants with the same known-therapeutic agents wherein all plants are previously known for treating the same disease is considered an obvious combination.

Principle 3: If an ingredient is already known for treating a  disease, then it creates a  presumption of obviousness that a  combination product comprising this known active ingredient would be effective for treating the same disease.

Principle 4:  Discovering the  Optimum or  Workable  Ranges of Traditionally known ingredients by  Routine experimentation is not inventive.

Principle 5: If multiple ingredients are known to have the same therapeutic activity as traditional knowledge,  taking out one single component cannot be considered inventive.

Principle 6: In case individual ingredients are already known for the treatment of a disease as a  part of  Traditional  Knowledge,  then it is obvious that a  combination product comprising these known ingredients with further plants with the same known therapeutic effect would be more effective than each of the medicinal plants when applied separately (additive effect).

Other Such Endeavours By Nestlé: Nestlé tried to claim credit for utilising cow’s milk as a laxative in 2011. However, such consciousness and knowledge had been in Indian medical literature for a thousand years.

In the 1970s, the company poisoned its milk with melamine, bought cocoa from farms that used child slave labour, and sponsored a breast milk substitution campaign that resulted in the suffering and deaths of thousands of newborns from poverty-stricken regions.

All in all, we need to wait to see what is in store for Nestlé!

Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.