Catherine StewartIs Nestlé trying to patent Nigella sativa?

Nigella sativa Photo AndreHolz

An online petition calls for protest action about Nestlé’s patent applications involving the fennel flower*, Nigella sativa, with vitriol pouring from every ‘natural’ or ‘greenie’ website. But is Nestlé really trying to patent a species flower?

Fact 1: Nestlé DOES have patent applications lodged in the USA, Europe and Japan for an ‘invention’ involving the use of an extract from a range of plants, including Nigella sativa seeds, also sometimes called black cumin**.

Fact 2: In general you can’t patent a naturally-occurring substance like a species flower, or something that is not new.

But the misleading cries about ‘patenting a flower’ are not what the protest petition is really about, although Nestlé seems to be deliberately muddying the waters in an attempt to diffuse the protests by claiming rather paternalistically on its website:

Nestlé is not trying to patent the fennel flower.
We made patent applications for a compound that can be extracted from Nigella sativa (also known as fennel flower, black seed and black cumin) or from other plants, to help treat or prevent food allergies.
The patent, which has not yet been approved, would not prevent the use of the fennel flower plant for any other purposes, including in traditional and natural remedies.” [They’re my bold text additions]

Nigella sativa seed Photo TheGoblin

Nigella sativa seed Photo TheGoblin

[Note the phrase ‘for any other purposes’ there, which seems to be saying that traditional use of the fennel flower can continue as long as it’s not for the purpose that Nestlé is applying to patent……but read on]

The online petition by SumOfUs claims about Nestlé’s patent application:

In a paper published last year, Nestlé scientists claimed to “discover” what much of the world has known for millennia: that nigella sativa extract could be used for “nutritional interventions in humans with food allergy”…

But now Nestlé is claiming to own it, and filing patent claims around the world to try and take control over the natural cure of the fennel flower and turn it into a costly private drug” and “that its patent application would prevent millions from using its natural curative powers.”

SumOfUs then goes on to muddy its own waters by accusing Nestlé of being a unethical corporate because of a link to the Chinese milk powder melamine contamination scandal and the use of child labour on plantations where it sources cocoa. Which may well be true but has nothing to do with Nigella sativa seeds. (Just stick to the point please SumOfUs – this emotive red herring stuff does not help)

So what’s the truth of the matter? Yes, Nestlé has applied for patents concerning the use of compounds extracted from Nigella sativa. For the application to succeed, it will need to prove that either the formula or compound, or this particular use, is new. If it’s the same as has been used traditionally, then the application will fail.

The patent application descibes the ‘invention’ as the identification of several plant extracts, including thymoquinone, found in Nigella sativa, an “opioid receptor stimulating compound” that reduced allergic reactions in test mice and which will potentially have the same effect in humans, many of whom are severely affected by food and animal allergies. The patent application explains that the invention includes the correct concentration and dosage.

nigella-sativa-label

Although in the application Nestlé acknowledges: “One of the plants containing thymoquinone is Nigella sativa (Black Cumin, Black Seed). It has been used for centuries as spice and medicinal plant in Southern Europe, Northern Africa, Asia Minor and India” and also “Thymoquinone has been used for medical purposes for more than 2,000 years. Typical applications were its use as antioxidant, anti-inflammatory, and antineoplastic medicinesthere is no mention of its traditional use as an anti allergen. [Note: antineoplastic means preventing malignant tumor growth]

So could Nestlé’s patent application, if successful, prevent the use of Nigella sativa seeds by anyone else, traditional medical expert or otherwise as an anti allergen? It would seem to me that the answer is YES, but I guess we will have to wait until the patent application is accepted or rejected to know for sure, and the first law suits start rolling out.

And should its patent succeed? I guess the answer to that is also YES – if this is indeed a new use that is proven to be unknown in traditional medicine and Nestlé is spending lots of money developing a new drug that will be of great benefit to many people – then a patent would look pretty fair to me. If a company cannot make a profit from the discovery and development, who will invest in new potentially life-saving or greatly life-improving drugs?

* note this is NOT anything to do with fennel herb, which is Foeniculum vulgare

** there are other seeds called ‘black cumin’ such as in the Bunium genus, part of the Apiaceae family, while Nigella is in the Ranunculaceae family. ‘Black cumin’ is mentioned several times in ancient texts like the Koran as a great cure-all, but it’s likely this reference does not mean Nigella sativa. And so we have the typical confusion surrounding the use of a common name.

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Catherine Stewart

About Catherine Stewart

Award-winning garden journalist, blogger and photographer; writer for garden magazines and co-author of 'Waterwise Gardening'; landscape designer turned landscape design judge and critic; compulsive networker and lover of generally putting fingers in lots of pies. Particularly mud pies. Original creator of GardenDrum. South Coast NSW.

12 thoughts on “Is Nestlé trying to patent Nigella sativa?

  1. Thank you for this information, Catherine. I received the email from SumOfUs, too, and was quite disturbed.

    After receiving the email I sent it on to a friend who works for Nestle (in Switzerland) to seek clarification, but my email has remained unanswered. I will send your post on to her, hoping it may be of interest!

    It is a curly matter, but your research makes me feel a little better about what may occur!

    Hugs, Bernard

  2. Thanks Bernard. The facts have become buried under a deluge of misinformation and hysteria which makes it very hard to discern the truth of the matter. It does raise a number of questions about the intellectual property inherent in traditional medicines so I will also consult my IP lawyer friend for some feedback.

  3. Centuries ago, we did not have Peer Reviewed Medical Journals where alchemists, healers and even our great grandmothers wrote about the medicinal properties of flowers and herbs. Alchemists have also contributed to many of our modern medical and physical sciences, without registering patents on Mother Nature’s gifts. If you live in DC and have friends who work in the patent office, you will come to understand how easily of a slippery slope could occur, and place an infringement of our rights to even grow the flower. Just ask a patent lawyer and they will tell you that if a billon dollar corporation like Nestle was to paten this flower, (or parts of it), you could be sued for planting it even in your garden. Monsanto tried to sue a Canadian farmer by claiming that he was planting their seeds, which blew into his field. The Canadian courts, intelligently enough, ruled in the farmers favour and stated that it was Monsanto who violated private property. Canadians are already in disagreement with our federal government because the government want to cease the importation of certain natural remedies in order to provide larger profits to conglomerate pharmaceutical companies. Personally, I am sick of it. Perhaps Sumof|Us hasn’t made the best argument but it has allowed me to use my critical thinking skills and do my research. I have signed the petition. I am curious as to what your motive is Catherine for being sarcastic and acerbic to the supporters of this petition. We “Greenies” care a great deal about our future generation, including that of my child.

    • Patricia, I don’t know anyone who works for, or could possibly benefit from Nestle winning this patent. I’m not even a fan of their chocolate. It’s unfortunate that those who think the world is run by giant conspiracies use those sorts of insinuations to fight for their causes. My comments aren’t based on beliefs, just on facts. As BOTH SumOfUs and Nestle “muddied the waters” in their claims and counter claims, I went to the original source document ie the patent application itself, to understand what was really happening. Whatever a patent officer may say, a naturally occurring species plant can’t be patented anywhere in the world. Nor can the Nestle patent, even if it’s successful, prevent people from planting it in their gardens. It could only ever prevent someone trying to sell an extract of it to be used for exactly the same purpose for which Nestle wants to patent it.
      As for farmers being sued by Monsanto for inadvertently growing their GM patented grain – I agree completely with the Canadian court ruling, although it’s not really relevant to this discussion.
      And for anyone who has survived cancer, or a heart attack, or a stroke, or HIV or any number of diseases, it’s those giant “conglomerate pharmaceutical companies” that developed the drugs that saved their lives, not alchemists. I won’t be refusing their patented medicines if the need arises for me or my family.

  4. Thanks for this!! It was excellent to see an non-biased discussion about the topic. I take both the Nestle and the SumOfUs descriptions with a hearty dose of salt. One has a butt to cover and the other is like Chicken Little & the falling sky! I’m all for public use of nature made things, but if they can develop drugs that can minimise allergic reactions or anaphylaxis in children, I’m all for it. They’ve spent a pretty penny doing the research and proving it up, it would be unethical for another company to use that research to make a buck, just because it’s a naturally occurring substance in some plants.

    I’d like to read their research. Do you know if it’s published where it can be accessed?

  5. Dear Ms. Stewart,

    SumofUs is a good grassroots organization that tries to alert the public about things going on in the corporate world which could have disastrous consequences. When they send out their newsletters, they sweep over the issues in broad terms so that everyone can understand the basic information with just a quick read. They are also trying to communicate the importance of the information, which might make them come across as emotional, but make no mistake, this particular patent case will change history if it goes through.

    Nestle is a corporation that has its hands in money-making ventures all around the globe, in many cases without regard to human and environmental consequences. You say in your article that Nestle’s track record should have nothing to do with the present discussion. That is ridiculous. Of course a company’s (or a person’s) history, character, manifesto, has everything to do with how they are perceived by the public and whether or not they should be trusted.

    The main thing to ask yourself is, do you believe that it is ethical to patent life? For me, the answer is a resounding no. It used to be that there was a very firm law against the patenting of any form of life, but now, money, power, and insistent lobbying have created a slippery slope, and suddenly in the last 20 years, we are patenting life. First, only genetically modified species, but now, this.

    The problem with this particular patent is that Nestle has not actually INVENTED anything. Nestle states that they are filing the patent for “the correct concentration and dosage of the flower extract.” It’s hard to believe that they have the gall to even file the patent in the first place. And yet it has been taken seriously. The technicians at Nestle are not the first ones to discover that the fennel flower can be used for allergies. This information is well documented, not in the U.S., but in other cultures. This flower has been used as a cure-all for thousands of years.

    Nestle has every right to try and use the fennel flower to make money. But why do they need to OWN it? They have no right to own it. They did not invent the fennel flower. The fennel flower is a gift from Mother Nature. It is there for human beings to discover the wonder of all the things it can do. If this goes through and Nestle can suddenly claim ownership of the extraction of the fennel flower, and can sue others for its use (which they will), that will be a perversion of what the patent law was intended to do. The patent law is intended as a protection for inventors.

    In the comment section, someone mentioned the case of Percy Schmieser versus Monsanto. That is a case that has been well-publicized, because Mr. Schmieser had the guts to speak out against Monsanto even though they threatened him about going public with his story. There are hundreds of cases like his. I am incredulous that you could agree with the Canada court ruling. Do you know the real details of the case?

    Percy Schmieser grew organic soy in his field in Canada. GMO soy blew off a truck passing by his land and some of the seeds germinated around some telephone poles on his property. Percy did not even know it was there and never wanted the GMO soy on his land in the first place. Monsanto has “scouts.” They are literally spies who go to farmer’s land in the middle of the night and apparently test for GMO plants. This kind of trespassing is illegal! The tests are performed by agents of Monsanto and in many cases, the results are presented in court a year or two later with no verification whatsoever that the samples were even taken from the land in question!

    Anyway, the scouts found GMO soy on Percy’s land, dragged him through the courts for years, cost him his life savings and destroyed his business. The greed and atrocious unfairness of these corporate companies is staggering.

    I went into detail about this particular case, because a company’s track record IS important. It is crucial to remember, that at the time Monsanto patented its GMO soy seed in the mid-1990’s, they said that any farmer would have the right to continue planting organic soy. Today, organic soy is not available and no farmer would plant it if it were. If a farmer plants organic soy, it is a near guarantee that he will be sued by Monsanto. Farmers are also sued for saving their own seed, a practice that has kept the human race alive since the beginning of existence.

    It is reasonable to assume then, that the same types of things will happen after the fennel flower is patented, and no doubt, the patents on other living things that will surely follow.

    At the end of the article, you write, “If a company cannot make a profit from the discovery and development, who will invest in new, potentially life-saving or greatly improving drugs?”

    The way you have phrased this is misleading on so many levels.

    Nestle did not “DISCOVER” or “DEVELOP” anything. They are trying to capitalize on and claim ownership of something which has been around for thousands of years.
    What they are trying to patent is not a “DRUG.” It is an herb. They have not altered the genetic composition of this plant, because the extract is perfect as it is, the way nature made it.
    Also, it is not “NEW.” It is older than time, older than Nestle, older than patent laws.

    Finally, Nestle does not need to OWN the extract of the flower to create an effective supplement that could benefit millions of people. What makes them seek the patent is the possibility of having complete control over its use. If they were really concerned about the well-being of their customers, they would simply create a safe, effective product, from which they could make a reasonable profit.

    Sincerely,
    Johanna Campbell
    Cary, North Carolina

    • Nestle are not seeking a patent on life. Please don’t put that assertion forward then bat down anything Catherine Stewart has witten above. Please tell me you understand the difference between patenting the science they discover utilising the species and patenting the actual species? Because that wordy and defensive statement above doesn’t sound like it. If no one else has come up with the exact medicinal concentrations and dosages for prescribed use, then why can’t the company that funded that discovery patent it? Please don’t get me wrong, nestle have done and continue to do many atrocious things, but this ain’t one of them.

      Unless you’re in 1950, plants have been patentable for a lot longer than 20 years. 1931 was the first issued in USA. But let’s be really clear: no one can patent a wild, natural plant. There is no question at all that Nestle didn’t discover or create n. Sativa. They are not applying to patent it because that patent would fail. It’s is all about the science. Any successes they’ve found in their early work are being protected. Let’s say you did a study on your navel (suspect that happens a lot, but is probably not profitable in its early work), and someone used the results of your navel study to give their own navel gazing study to fast track their own profitable discoveries. Wouldn’t you want to protect your royalties from doing all the hard early work? Same thing. But you know, that’s how you science. Intelectual property is one thing, but it’s much easier and more reliable to put a patent on it when you’re very sure it’s a money making stream of success and discovery.

  6. Dear HouseofNom,
    In the 1930’s, when we first gave plant patents to inventors who had asexually reproduced a plant, through means other than seeds, the inventor had to have created something “novel and distinctive.” No part of a wild or naturally occurring species could be patented. However, in the last 80 years, what we allow to be patented has become more and more inclusive of things that were previously forbidden. Patent holders have an enormous amount of power that they use to make money for their stockholders, while ethical issues and product safety often get brushed under the rug. Nestle’s action suggests that the company is seeking as much control as it can possibly get over the rights to Nigella Sativa. Who knows what kinds of things will start happening once they get it? Only time will tell.
    Nestle is filing a claim for N. Sativa for a “composition of matter,” which is understood to be the most powerful patent to own. The patent covers, by definition, ANY USE of the claimed composition of matter, as opposed to a process of manufacture. Composition of matter refers to the stuff that an invention is made of, down to its molecular composition. Nigella Sativa is full of healing components, like tannins, conjugated linoleic acid, and thymoquinone, none of which Nestle “invented.” Nestle is looking to patent a specific ratio of these naturally occurring compounds and will be able to sue other companies or persons who attempt to use them. I believe this is a perversion of our patent system, which exists to reward true invention.
    I do not wish to antagonize anyone. Not you, not Ms. Stewart. My only hope is that I can encourage others to think about what they are advocating. You are opening the floodgates for thousands of patents involving living things; our patents are becoming increasingly permissive as the years go by. Think about what patents involving seeds, plants, and pesticides have done to agriculture in this country in the last 25 years!
    The companies who have gained them employ very clever PR people who post very reasonable-sounding articles on their websites; however, consider the big picture of the corporate takeover of agriculture. 80% of the food on our supermarket shelves contains genetically modified ingredients and much of our water is being poisoned from billions of gallons of pesticides sprayed on our crops year after year. Small family farms, once prevalent where I grew up, are declining to near extinction, and small farmers are sued right and left, losing their life savings and/or the right to save their own seed. If large organizations control our food and medicine, they will be able to charge any amount of money for them. You yourself admitted that Nestle “has done and continues to do many atrocious things.” Given their track record, why are you willing to trust them now?
    My fear is that someday, big corporations will own the rights to everything we now grow in our gardens. That is not a far-fetched prediction, if the system is allowed to escalate in its present state. Is that the kind of world you want to live in? I believe that we have to draw the line somewhere, and while science is extremely important to our ability to survive during an age of expansive population growth, I think it is dangerous to grant ownership of living things, whether it be a component of that living thing, or the thing itself.
    Sincerely,
    Johanna Campbell
    Cary, NC

    • Robinson on Patents has defined “composition of matter” in these terms:

      “A composition of matter is an instrument formed by the intermixture of two or more ingredients, and possessing properties which belong to none of these ingredients in their separate state. …The intermixture of ingredients in a composition of matter may be produced by mechanical or chemical operations, and its result may be a compound substance resolvable into its constituent elements by mechanical processes, or a new substance which can be destroyed only by chemical analysis.”

      Nope. Not a plant. Using a plant with something else, but not the actual plant.

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