This week it was reported in the news that a man from Drenthe has obtained a patent on a grain known as Teff. This plant variety, which is thousands of years old, is Ethiopia's national crop. The news has raised quite a few questions. Is it possible to have a patent on a plant which people have known about for centuries? Or, more generally speaking: is it possible to obtain a patent on something that has been around and used for years?
In both instances the answer is: No
The European patent in question has been registered in the Netherlands, among other places, but does not offer protection for Teff as a plant. The patent does offer protection for a type of flour, derived from the Teff plant, which has to have a certain minimum value for the so-called 'falling number' in order to be protected.
This falling number is determined by measuring the time needed for a cone-shaped weight to 'fall' a certain distance through the flour. The higher this falling number, the better the properties of the products prepared with this flour.
Surely people already knew about this grain from Ethiopia?
The complaint about this patent is mainly based on the fact that people have known about Teff flour for thousands of years and it is frequently used in Ethiopia. However, in the process of granting this patent not a single publication turned up that mentions that this well-known flour has a falling number that is higher than the minimum value defined in the patent. That is hardly surprising because the falling number was not defined as a standard until the nineteen fifties.
However this does not mean that the existing types of flour from Ethiopia do not have a falling number. On the contrary: in recent proceedings it was demonstrated that the famous types of flour indeed have a falling number in excess of the patent's minimum value. According to the Netherlands Patent Office this demonstrates that the Teff flour that meets the patent's requirements was already known to exist, even though the value for the falling number has only recently been measured.
Novelty continues to be a firm requirement...
The above once again illustrates that novelty is an important requirement for obtaining a valid patent. The mere fact that an examiner did not have access to certain documents prejudicial to novelty during the process of granting the patent does not necessarily mean that the invention is novel according to the patent. Just like in this case, literature prejudicial to novelty may surface after the patent was granted or it may be possible to demonstrate with retroactive effect that the 'invention' was already in the public domain after all. In such cases, the patent can still be nullified with retroactive effect.
The man from Drenthe definitely does not have a patent on the plant species Teff. It should become clear in the near future whether his patent on certain types of Teff flour can remain intact. In any case, the Netherlands Patent Office is of the opinion that there are good grounds for disputing the patent's validity.