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January 13, 2010 5:30 PM

Fulbright Goes Pro Bono in IP Case Over Food for the Hungry

Posted by Zach Lowe

Fulbright & Jaworski has agreed to represent two U.S.-based nonprofits who claim a French company is blocking rivals from producing a nut-based food product that is well-suited for feeding malnourished children, according to this Associated Press story and the lead Fulbright lawyer on the matter. 

The U.S. companies, Mama Cares Foundation and Breedlove Foods Inc., filed suit in federal district court in Washington, D.C., against Nutriset, based in Malaunay, France. The nonprofits claim the company's patent covering the nut-based product is invalid because it is so broad as to be unenforceable, court records show. The plaintiffs further claim Nutriset has sent them warning letters promising litigation should they attempt to produce a similar product, according to court records and Robert Chiaviello, the lead Fulbright lawyer on the case. 

The firm has never represented either company before, Chiaviello says. The president of The Peanut Institute, a nonprofit "dedicated to expanding state-of-the-art knowledge regarding peanuts," reached out to Chiaviello after his campaign to produce nut-based food for the hungry ran up against the Nutriset patent, Chiaviello says. (Chiaviello and Jeff Johnson, the institute president, have a mutual friend, Chiaviello says.)

At the heart of the dispute is Nutriset's Plumpy'nut paste, a nut-based food packed with vitamins and packaged into 500-calorie pouches that organizations such as Doctors Without Borders have distributed in Sudan and elsewhere, the AP reports. But, says Chiaviello, Nutriset's U.S. patent for Plumpy'nut is so vague as to possibly cover any nut-based paste with a similar composition, which is why the nonprofits are challenging the patent's validity in court. (The AP tracked down a couple of experts who agree with Chiaviello that the patent is likely too vague in its current form.)

Even if the Nutriset patent is enforceable, Chiaviello says, Mama Cares or Breedlove (or both) could make a product different enough as to not infringe it. But Nutriset has indicated it would fight such a move in court, he says. "They have taken an unreasonable position," Chiaviello says. "It has a chilling effect."

Nutriset does not appear to have hired counsel in the case, and Fulbright hasn't yet served the company with the complaint, Chiaviello says. French law demands that U.S. lawyers translate the complaint into French and, in some cases, hire a French bailiff to serve it, Chiaviello says. The firm expects to serve Nutriset with the complaint by the end of this week, he says.

Nutriset, for its part, claims it is defending the patent because doing so guarantees it can maintain Plumpy'nut's quality and license its production to companies in the developing world. "We absolutely don't want to be in the way of the product malnourished children need," a spokesman told the AP.

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