Chipping Away at ActionAid

I posted a while back about ActionAid and their somewhat crass venture into the field of intellectual property. I included a copy of my email to them; they have now replied.

If you recall, their article said

To highlight the injustice of patents on food, ActionAid 'invented' a ready-salted chip, nd filed for a patent. If successful, could be granted legal rights over the ActionAid hip, and any chips that have salt added to them. So we could demand that chip shop owners throughout the UK pay for a licence to add salt to their chips. With 300 million servings of chips sold each year, we could stand to make millions
[...]
New patent rules allow companies to get exclusive rights over basic foods and even ature itself, simply by adding something to it or modifying it in a way that has not been done before.

My email to them pointed out that this was somewhat misleading and asked for further details or a retraction. Their reply is:

Thank you for your email regarding the spoof patent application made by ActionAid on 2002, ‘The ActionAid Chip’. I am sorry to hear that you find the article you have read regarding this misleading, as that was certainly not our intention.

As I have mentioned this spoof patent was part of a campaign run by ActionAid in 2002 and is not related to our current work. We apologise for any confusion and we have now amended our website to make it clear that this is a previous campaign.

Please see the amended webpage here: http://www.actionaid.org.uk/100626/previous_corporate_campaigns.html

This spoof chip patent application was a campaign device to highlight and draw attention to the issue of patents on food crops. We were very clear at the time in our press releases and materials that this was spoof application to draw attention to the issues.

We did the application at the time of the deliberations of the Commission on Intellectual Property Rights (CIPR) which was set up by the Department of International Development (DfID), and which was looking at the implications of IPR rules and development policies.

Many of ActionAid's key concerns were reflected in the final report by this CIPR in September 2002, and we felt that the investment of under £100 in the spoof chip patent application was a good and cost effective use of our precious resources.

I would like to take this opportunity to thank you for contacting us, should you have any further queries then please do not hesitate to contact me.

Yours sincerely

UK Supporter Care Team

Well, I'm not impressed. Here is my response:

Thank you for your reply. Whilst I note that the "Previous Corporate Campaigns" page refers to the chip as a past issue, the page itself does not, and still refers to "new patent rules". The potential for confusion is still significant, therefore, if readers are sent to page by a direct link (as I was).

You do not identify the application in question, but I now understand it to be GB2384968, filed on 11 February 2002 by Shalil Shetty. Please confirm whether this is the case. Assuming that it is, this allows me to be somewhat more specific as to my concerns over your article, viz:

"If successful, [we] could be granted legal rights over the ActionAid Chip, and any chips that have salt added to them. "

First, of course, the application was not successful. I have asked the Patent Office for a copy of the file, but for now it is clear that examination of the application was requested and that the application was terminated some time later. It seems, therefore, that the application met with objections. The statement is therefore misleading in that it does not make clear that the application will be subject to a critical examination intended to weed out applications covering known or obvious subject-matter.

The statement is also untruthful in stating that the patent, if granted, would cover "any chips that have salt added to them". The closest claim to this is claim 1, which refers to a chip that is "imbued" with the flavour of salt. Whilst this term is regrettably unclear, it does not (to my mind) cover a chip with an external sprinkling of salt - the salt flavour must be within and throughout the body of the chip in order to be "imbued".

A patent resulting from your application would not therefore cover "any chips that have salt added to them", nor would it cover conventionally salted chips. Your statement is untruthful.

The same applies to:

"So we could demand that chip shop owners throughout the UK pay for a licence to add salt to their chips. With 300 million servings of chips sold each year, we could stand to make millions"

The application as drafted would not cover the normal activities of chip shop owners, and would not grant you the right to claim royalties. The statement is untruthful.

Your article also fails to mention section 70 of the Patents Act, that would allow any person aggrieved by threats of infringement proceedings or demand for royalty payments to seek an injunction preventing you from doing so, and the various fora (including low-cost fora such as the Patent Office) through which the validity of a patent can be challenged.

Your article fails to set out the content of your patent application, and this (at the time) would have prevented third parties from challenging your conclusions.

Your article therefore gives the false impression that the patent system allows the monopolisation of known processes (such as salted chips) and the extortion of royalties from honest traders. I find this most insulting. In nearly 20 years of work in the patent profession, I have specialised in acting for small to medium companies, and in using the patent system both to secure for them the proper protection for their innovation, and to defend them against unjustified claims. I believe that I have been successful in doing so, particularly in securing resolution of disputes in a cost-effective and proportionate manner. Often, the patent system has been the only means for such companies - especially the small ones - to defend themselves against competing large corporates with greater commercial clout.

Your article is, in short, crass and untruthful and gives a completely misleading impression. I ask you to amend it so as to recognise:

(a) that your application was refused by the Patent Office acting in line with normal principles of patent examination, and

(b) that, if a patent had been granted, it would not in fact have given you the rights to which you refer.

I'll post any further news on the subject...