Rarely do patents impact the political discourse of a nation. But Heuking Kühn Lüer Wojtek's case against the German part of the European patent for the grain teff is one example. Ethiopia is trying to regain control over this crop, which is vital for the country's export market and the livelihood of its farmers.
21 May 2019 by Amy Sandys
An ancient grain native to the highlands of Ethiopia, teff has been used in food production for around 5000 years. It is gluten-free and rich in protein, iron and fibre, making it ideal for a diet rich in meat and vegetables. The grain also forms the basis for Ethiopia’s staple dish, injera.
However, Dutch agronomist Jans Roosjen has owned the European patent (EP 16 46 287) for flour derived from teff, as well as any teff-related foodstuffs in Europe, since 2007. This was initially through Roosjen’s company Health and Performance Food International (HFPI). HFPI went bankrupt in 2009, but Roosjen holds the patent via two teff export companies.
For Anton Horn, partner at the Düsseldorf office of Heuking Kühn Lüer Wojtek, the matter is of great political and economic significance. “This is also a project of social responsibility,” says Horn. In a patent nullity case led by Horn, Heuking seeks to render the German part of the European patent void. Horn is pursuing the case without a patent attorney.
This decision is partially down to the case’s geopolitical weight, Horn explains, which adds urgency to the proceedings. “The patent is of public interest, especially given the potential for its impact.”
Horn points out that in Germany it is less unusual for lawyers, as opposed to patent attorneys, to represent their clients in invalidation proceedings. “Given that the patenting of teff is not too complex scientifically, it made sense to pursue the case while representing myself.”
Application for a patent similar to the European patent for teff was rejected by both the US and Japan patent offices. “The US and Japan patent offices remained diligent in the face of such a controversial request,” says Horn. “However, the European Patent Office was clearly working from a different perspective.”
Proceedings began after Heuking requested that patent holder Roosjen waive the German part of the teff patent. Roosjen failed to respond. Then, in 2018, two Dutch patents for teff were declared null and void due to Ancientgrain, which held two teff patents, beginning infringement proceedings against Dutch baking ingredient supplier Bakels.
Although rejected on lack of inventive step, the European patent for teff is still valid in Belgium, Germany, Austria, Italy and the UK. There were celebrations in Ethiopia following the revocation of the Dutch patent. But many still that feel the remaining patent undermines one of Ethiopia’s most prized national assets.
In Europe, the patent covers the processing of teff flour in its entirety. The patent being granted in its entirety caused controversy in Ethiopia; many view teff as integral to its culinary history. Nowadays teff is seen as a potential solution for food security in the face of global climate change, since it thrives under different conditions.
The characteristics of teff also means its flour is increasingly sought after by celiacs, and those pursuing a gluten-free diet. Its growing global popularity beyond its own borders means Ethiopia is keen to expand its export market for teff and teff-based products. This is something the country is currently unable to do.
“Teff is the best flour for people who are gluten intolerant, but at the moment the European patent for teff means any products which contain it are very expensive,” says Horn. “There is the question of licence fees, and producers are afraid of infringing the patent. Not only that, but Ethiopia is being restricted from exporting its own product.”
The battle for teff is indicative of the current state of food and plant patents at the EPO. “The European patent for teff controls the whole supply chain. The real money and real battles are both in the development of agricultural products for food. This is a battle regarding the food industry and procedures,” says Horn.
For food and plant patents, there is currently a stay of proceedings in place at the EPO. Examining and opposition divisions concerning material obtained “via an essentially biological process” are on hold at the EPO. Proceedings for plants, or applications for patents concerning other plant-based material, are unaffected.
But it is likely that the teff case will not be heard until at least 2021 at the Federal Patent Court in Germany. Action for annulment by Heuking was received on April 1 2019.
All political efforts to deny the European patent for teff have so far been unsuccessful. Revocation of the patent was even put forward as an official question to the German federal government, but subsequently rejected.
The last course is to file a nullity action against EP 16 46 287.