Sunday, July 01, 2012

Right and Fair? Legal Friday.

It's Sunday afternoon and I feel like my feet have not hit the ground since Friday! Speaking of which, Friday was an interesting day.

As a supplement formulator, I have noted the rise and rise of the proprietary blend (usually marked with an ® or TM on supplement labels). It's not something I've thought about much, as I don't generally use them when formulating, but on Friday I had a fascinating run in with a supplier over just such a thing.

Let me give you a hypothetical example of how it went down. I don't want to mention the actual ingredients as the company involved seems aggressive, and there is also an issue of client confidentiality on my end. 

So.. let's say that I've been researching scientific journals and identified a few natural things that seem to have efficacy in treating a modern condition, say Irritable Bowel Syndrome (IBS). I figure out that slippery elm powder, citrus pectin, vitamin e and grapeseed extract would be good for IBS (remember, this is a pretend situation. I'm not recommending these things for IBS).

I start searching for suppliers of the ingredients and come across a blend called IBsyn® made by WKRS Company.  The product contains slippery elm and citrus pectin in unspecified quantities and has been well tested on IBS sufferers. I think this might be a more cost effective way to get two of the ingredients I want and contact the Australasian distributor. He sends me a bunch of information and an eye-watering price - approximately five times what buying the ingredients separately would cost.

I decline the offer, indicating that, as awesome as their blend seem to be, I've worked with these ingredients before and can get them at a much better price. At that point the distributor starts getting legal on me:

"Sara, I must warn you that WKRS Co. has a patent on the use of slippery elm and citrus pectin together in an IBS formulation and is known for legal enforcement of their patent"

Me: "Ok, well thanks for the warning, but I don't know the amounts of slippery elm and citrus pectin in IBsyn®, and I don't intend to plagiarise it" 

Rep: "The patent is for any amount of these ingredients, whether alone or with other ingredients"

Me: "What?"

Rep: "If you put slippery elm and citrus pectin in a formulation and say that this helps IBS, you are in violation of the WKRS Co. patent"

Now remember, WKRS Co. did not invent slippery elm and citrus pectin, not did they develop the technology to extract them. Nor are they the first to study them or link them with IBS. They have patented two common ingredients as a blend, and now sell them for five times the usual price, simultaneously stopping anyone else from making a more cost effective version.

Therefore, on Friday, my research project headed off into the hairy area of intellectual property rights. Such a waste of my time, but necessary if I'm to prevent my client being squashed like a flea by a massive corporation and their paranoid tattle-tale yes-man distributors. So far as I've determined, their patent is only valid in America, however I did discover that they have patented it for a number of conditions, including cancer (that is, if you market these ingredients for any of the conditions they have named, their legal department will do ya). 

I see they tried to patent it in NZ, but for some reason it didn't fly. I don't think it would be possible to patent a dietary supplement in NZ, as we are not officially allowed to market them for specific conditions anyway. By some sweet coincidence my cousin just started a job in IP and is proving most helpful.  I'll let you know how it pans out.

But, anyway, my main point is not whether this particular patent is going to cause me a headache next week. I am thinking about the rightness and fairness of being able to patent a blend of already existing, common natural ingredients, thus driving up the price and turning everyone else's research into your own, personal gravy train. Where will it end? Perhaps, eventually, you will read a label of your 3 x the price supplement, and instead of saying vitamin C, vitamin E, Iron, Vitamin B12, Green Tea etc, you will see CErivit®, GTron>® and BITex®, all proprietary blends, patented by Mr Big Nasty Inc.

I can understand patenting a unique or innovative formulation, or a new ingredient or process you you have actually discovered or invented. A blend of two natural ingredients that have been in use for decades though? It's a bit like saying oranges and lemons are both good for your immune system, therefore, I'm patenting them as an immune enhancing combination. From now on, anyone that sells oranges and lemons together and indicates they are good for immunity, is only allowed to sell the ones that I've pre-bagged in an orange+lemon bag. In addition, nobody is allowed to put an orange and lemon together themselves and sell them, they can only sell the ones in my special trademarked bag, which costs a lot.

What do you think?  
Unacceptable corporate greed, or nothing much to get in a fizz about?


  1. Wow, just wow. I don't think they have a leg to stand on personally. That would be like every paracetamol and codeine preparation being patented by Winthrop.
    If such a patent existed, they would have had to pay mega bucks for it. For a natural product..unlikely.

    1. Scary as it is, the patent for the product I'm dealing with DOES exist and they have successfully enforced it (found this out through the US patents office). They don't have a valid patent in Aus or NZ though, and if they did, good luck enforcing it through the TGA or Medsafe.

      I was thinking about those mixed painkillers. We have someone all over TV that has a patented blend of paracetamol and ibuprofen. I guess it is the process they have patented (?). Makes me mad what this craziness does to prices, making medicines and supplements a rich person's thing.

  2. Complete & utter bullshit and unfortunately happening more and more. :(

    1. Mmm hmm. I'm hoping NZ will continue not to take Dietary Supplements too seriously.. It has it's downside (industry cowboys), but also prevents this type of big business legal BS.

    2. whoops, apostrophe catastrophe...

  3. Wow, this is really interesting.... never thought of such a situation even existing! Is the patent for specifically IBS... could you get around it by wording that differently? Say GI discomfort? (hypothetically?)

    1. Well, the actual ingredients are not for IBS, but a much more common condition ( I used IBS so as not to break my client confidentiality agreement). The patent contains a list of words which is extensive and covers just about every word associated with the condition. None of those words may be on the label if it contains ingredients similar to those in their patented product. It's insanity. I can't believe they got a patent for it. I hope they never achieve that patent in NZ or Aus.


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