By Hugh Schofield
BBC News, Paris
Should a revolutionary humanitarian food product be protected by commercial patent, when lifting restrictions might save millions of starving children?
That is the moral conundrum at the heart of a bitter transatlantic legal dispute.
On one side are the French inventors of Plumpy'nut, a peanut paste which in the last five years has transformed treatment of acute malnutrition in Africa.
Nutriset, the Normandy-based company, says the patent is needed to safeguard production of Plumpy'nut in the developing world, and to stop the market being swamped by cheap US surpluses.
And on the other side are two American not-for-profit organisations that have filed a suit at a Washington DC federal court to have the patent overturned.
They say they are being stopped by Nutriset from manufacturing similar - and cheaper - peanut-based food products, despite the proven demand from aid agencies.
"By their actions, Nutriset are preventing malnourished children from getting what they need to survive. It is as simple as that," said Mike Mellace, of the San Diego-based Mama Cares Foundation.
For Nutriset's general manager, Adeline Lescanne, such accusations are unfair and distressing. "No child in the world has even been denied access to the product as a result of the patent issue," she said.
Only 5% of the world's malnourished children get Plumpy'nut or equivalents
"If they had - how would any of us be able to go to work in the morning?"
The one point of agreement between the two parties is that Plumpy'nut is that rare thing: a wonder-product.
A blend of peanut-butter, powdered milk, sugar and vegetable oil fortified with vitamins and minerals, the paste won its glowing reputation during a 2005 food crisis in Niger.
"Before, we had to hospitalise malnourished children - which is a huge drain on resources. With Plumpy'nut, largely because it does not have to be mixed with clean water, the children can stay at home," said Stephane Doyon, nutrition team leader at Medecins Sans Frontieres (Doctors without Borders).
"In 2002 it took 2,000 staff to treat 10,000 children during a famine in Angola. In Niger we needed just 150 staff for the same number of patients. Thanks to Plumpy'nut, mass treatment is suddenly possible."
Such has been its success that in the aid world Plumpy'nut is today the standard "ready-to-use therapeutic food" (RUTF), with Nutriset and its partners providing some 90% of global supply.
But it is this near-monopoly which is now being challenged.
For Mike Mellace - whose proposed alternative is called Re:vive - it is absurd to be barred from making something which is in essence very simple.
"Plumpy'nut is not some secret formula. Basically it's fortified Nutella. Anyone with a basic knowledge of peanuts could have developed it!" he said.
"But at Nutriset they do all they can to stop people competing. We have had cease-and-desist letters from them, and lots of other companies around the world have too."
According to Mellace, worldwide demand for RUTFs can only be met if supply is opened up - especially in the US, with its large peanut industry.
He cites UN figures showing that while 26 million children currently suffer from malnutrition, only between one and two million are receiving Plumpy'nut or equivalents.
At Nutriset, they do not dispute the figures - but they do offer a very different interpretation.
First, the patent is not universal. In a dozen countries such as Niger, Malawi and Kenya, Nutriset has set up a network of partnerships and franchises so that Plumpy'nut can be made locally and with locally-grown produce.
"Our motto is nutritional autonomy," said Nutriset's communications manager, Remi Vallet.
"We want poor countries to be able to produce the nutrients they need in a sustainable way.
"If the US companies were able to beat the patent, the global volume of RUTFs would of course go up. But it would also mean the end for our local partners in Africa, who wouldn't be able to compete. That is not what we want."
As for the question of demand, Nutriset says it and its partners have plenty of spare capacity.
"It is true that something like only 5% of malnourished children are getting RUTFs. But the problem there is not lack of production. It's because at the moment there is neither the international funding nor the systems in place to provide RUTFs," Mr Vallet said.
Underlying the Nutriset position is concern over the United States' historic policy on food aid, which remains heavily influenced by domestic agricultural lobbies.
The US is the world's biggest food donor, but laws there require that 99% of aid money be spent on American-grown surpluses. Nutriset believes its would-be competitors in the US are trying to cash in on this opportunity - to the huge detriment of local producers in Africa.
That argument holds little water for Mellace, who notes that Nutriset has itself just opened a joint venture in Rhode Island. The not-for-profit company called Edesia will be America's first ever RUTF producer.
"They come here and get a $2m USAID grant to set up a factory, and then they stop us producing basically the same thing. They are talking out of both sides of their mouth!" he said.
Mellace's case against Nutriset was given added force after Medecins Sans Frontieres also criticised the French company for a "policy of aggressive protection of
In a letter sent in November, the charity accused Nutriset of invoking patent rights to block a Norwegian competitor from transporting a Plumpy'nut equivalent via Kenya. The dispute was subsequently resolved amicably.
"We are not against patents per se," said Stephane Doyon of Medecins Sans Frontieres.
"But we do believe that in a domain as sensitive as humanitarian aid they need to handled with extreme flexibility."
At Nutriset they say they agree.
"We know a patent for a life-saving food product is not the same as a patent for a toaster," said Remi Vallet.
"It needs special management, and we give it."
"We are confident that we are acting for the best," said Adeline Lescanne.
"Our goal is long-term - so that governments in the developing world can eventually take charge of nutrition by themselves."