It appears that a French company has patented Plumpy’nut, a fortified peanut butter as a treatment for severe malnutrition:

Should a revolutionary humanitarian food product be protected by commercial patent, when lifting restrictions might save millions of starving children?

That is the moral conundrum at the heart of a bitter transatlantic legal dispute.

On one side are the French inventors of Plumpy’nut, a peanut paste which in the last five years has transformed treatment of acute malnutrition in Africa.

Nutriset, the Normandy-based company, says the patent is needed to safeguard production of Plumpy’nut in the developing world, and to stop the market being swamped by cheap US surpluses.

And on the other side are two American not-for-profit organisations that have filed a suit at a Washington DC federal court to have the patent overturned.

They say they are being stopped by Nutriset from manufacturing similar – and cheaper – peanut-based food products, despite the proven demand from aid agencies.

“By their actions, Nutriset are preventing malnourished children from getting what they need to survive. It is as simple as that,” said Mike Mellace, of the San Diego-based Mama Cares Foundation.

I will spare you the picture of the severely malnourished child in the article, but it appears to me that this patent is not only morally indefensible, but also a very real expansion of IP law to an area where it had not previously applied, recipes, which are rather famously not covered by copyright (see here), and the patent appears to be rather broad, covering pretty much every nut based food with milk in it, which would include the Nutella from which Plumpy’nut was originally derived.

The problem here is that the other potential players in this market (EVIL term, that) are all small not for profits who would be driven to extinction with a loss in a patent court.

One solution here is to make patents like civil rights law, and allow people to file suit before infringing, for the same reason that they do with civil rights suits: because the chilling effect occurs even if no one breaks the law.