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]
[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.
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 medicines” there 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.