This week's news reported that a man from Drenthe has obtained a patent on teff, a grain that has been Ethiopia's national crop for thousands of years. It raised some obvious questions. Can you patent a plant people have known about for centuries? And more broadly, can you patent something that's been in use for years?
In both instances the answer is no.
The European patent, registered in the Netherlands among other countries, doesn't protect teff as a plant. It protects a type of flour made from teff, and only flour that reaches a certain minimum "falling number."
That falling number is measured by timing how long a cone-shaped weight takes to fall a set distance through the flour. The higher the number, the better the flour performs in baking.
Surely people already knew about this grain from Ethiopia?
The objection to this patent rests on exactly that: teff flour has been used in Ethiopia for thousands of years. Yet during the granting process, no publication was found showing that this well-known flour has a falling number above the minimum set in the patent. That's not surprising, since the falling number wasn't standardised as a measure until the 1950s.
It doesn't mean Ethiopian flour lacks a falling number, though. Recent proceedings showed that traditional teff flour does exceed the patent's minimum. According to the Netherlands Patent Office, that proves flour meeting the patent's requirements already existed, even if nobody had measured it until recently.
Novelty remains a hard requirement
This case is a good reminder that novelty is essential to a valid patent. An examiner not finding prior art during the granting process doesn't make an invention novel. As here, prior art can surface after a patent is granted, or someone can demonstrate after the fact that the "invention" was already in the public domain. When that happens, the patent can be invalidated retroactively.
The man from Drenthe certainly doesn't hold a patent on the teff plant. Whether his patent on certain types of teff flour survives remains to be seen. The Netherlands Patent Office, for its part, considers there to be solid grounds to challenge its validity.
