The Hague rejects Dutch patent infringement suit over ancient grain

13-Feb-2019 - Last updated on 13-Feb-2019 at 14:39 GMT

A typical Ethiopian meal with Injera - a sourdough-risen flatbread with a slightly spongy texture traditionally made from teff flour.

Attempts by soil and improvement company Ancientgrain to sue bakery ingredients conglomerate Bakels Senior NV for patent infringement over teff have been rejected by the Court of The Hague.

The long running dispute between the two Dutch companies over the ownership of methods for the processing of teff has finally been settled, paving the way for Ethiopia to regain control over its global commercialization.

Teff is an ancient grain cultivated in Ethiopia, which has been touted as the next major superfood as it is gluten-free and rich in nutrients.

It has been consumed by the indigenous people for millennia, typically ground into flour to make Injera, a spongy fermented flatbread that is the national dish of Ethiopia.

Global control over teff

However, in 2003, Ancientgrain registered European patents for teff-related products, claiming that these were ‘invented’ by senior company official Jans Roosjen.

The Dutch patents (NL1023977 and NL1023978) cover flour blends containing teff and other grain flours and the process for ripening teff meal.

The patents generated significant controversy in Ethiopia, with Ethiopian ambassador to the US Fitsum Arega stating it prevented local companies from exploiting a growing global market for the grain.

Bakels’ teff flour bread mix

In 2014, Bakels launched a teff flour bread mix, sparking dissent from Ancientgrain, which claimed this mix infringed its patent.

Ancientgrain filed a complaint at the District Court of the District Court of Midden-Nederland, to which Bakels refuted claiming that Ancientgrain’s patented methods for processing teff for baked goods lacked inventiveness, so the patent was therefore void.

Bakels also disputed Ancientgrain’s temperature range for baking teff, which supposedly achieves the best results.

In 2015, the Netherlands Patent Office (NLO) backed Bakels’ counter argument and issued advisory guidance stating the patent was invalid.

Lack of inventiveness

The case eventually found its way to The Hague, which late last year ruled in favour of the NPO’s conclusion, finding no infringement had taken place because the patent ‘lacked inventiveness.’

It ruled that creating a process for mixing different grains with teff, preparing dough in a certain way and cooking it in a particular way cannot be patented; just as using wheat flour to make French bread cannot be patented. Ancientgrain was just using a slightly modified formulation for the teff flour.

Ronald Menting, MD of Bakels, told BakeryandSnacks that the company had opposed the accusations of Ancientgrain and ‘their doubtful patents’ in close cooperation with Dutch teff supplier Millets Place and the NLO.

“Indepth research by Millets Place agricultural experts proved that the claims in the patents coudn’t stand. After a lawsuit of three years, on November 21 2018, the judge nullified both Ancientgrain patents due to non-inventiveness,” he said in a statement.

The court ordered Ancientgrain to pay the costs of the lawsuit, however, Menting’s statement noted the company had been emptied before doing so.

“Bakels is pleased with the outcome of this lawsuit and will proceed to serve its markets with new Teff based baking concepts,” said Menting.

Ethiopia’s reaction

Apparently, Ancientgrain also secured registration patents in Italy, Australia and other countries – what the outcome will be over these remains to be seen – but Ethiopia, too, is overjoyed with The Hague’s ruling.

Following the judgement, Arega tweeted, “I hope we can learn from this that our national assets must be protected by Ethiopians and friends of Ethiopia.”

This is not be the first time a western company has tried to patent or copyright an existing African product.

For several years, French and American companies tried to trademark ‘rooibos’ (redbush), a herbal ‘tea’ made from fynbos that has been grown in South Africa for generations.

Thankfully, the country’s Department of Trade and Industry successfully obtained a ‘geographic indicator status’ for the product, meaning that only local manufacturers may use the name.