Nutrition businesses need major innovation that can only come with realignment of financial incentives, such as limited exclusivity granted by patents, but governments around the world are obstructing innovation in nutrition.

Experts agree that public health issues in the United States are not being solved despite an abundance of highly trained personnel, remarkable facilities, and access to the newest drugs and technologies. Instead, health care costs keep rising as the technology advances. Experts also agree that “improving American nutrition would make the biggest impact on our health care.” A significant part of the problem is that governments are more likely to grant patents to drugs, devices, and treatments over nutrition innovations, making treatments more financially rewarding than prevention and increasing the disease burden and health care costs.

Though there is no restriction against nutritional inventions in most patent laws, in practice the patent system favors drugs, devices, and treatments over nutritional solutions. Further, when nutritional patents are granted, they are severely restricted, such as to a narrow formulation or to fortification of foods with certain nutrients for certain use.

Innovation Obstruction in Nutrition Causes Chaos

The U.S. and European patent offices each have developed their own methods of obstructing innovation in nutrition. The presumption is that nutritional solutions are already inherent in nutrition. However, under the doctrine of inherency, the prior art must necessarily function as claimed and there must not be opposite teachings in the art for the claimed solution to be considered obvious. Therefore, when other objections cannot be applied to significant nutritional innovation, the U.S. Patent and Trademark Office resorts to the “patent-ineligibility” objection under Section 101 of the U.S. patent law, whereas the European Patent Office resorts to the “added matter” objection. In reality, these objections are applied to force applicants into a restricted position. The holdings of these two offices are copied by other patent offices around the world. In effect, governments around the world in collusion are obstructing innovation in nutrition.

This is creating chaos in the field of nutrition. Unlike drug companies, which rely upon high margins for success, afforded by the clear exclusivity of patents, food businesses rely upon volume for success because the restricted patents or sales rarely give them sufficient margins.

In order to drive volume, food businesses put out thousands of food products with their own spin on why their products are healthy, bombarding citizens with contradicting marketing messages and making it more difficult for them to practice good nutrition.

As it is, nutrition is exceptionally complex. It involves an infinite number of interacting nutrients that affect our bodies in an infinite number of ways, including which genes are expressed and which ones are silenced. Further, some nutrients are potent in micrograms and extremely difficult to monitor. Furthermore, nutrients in food sources are highly unpredictable, based on geography, cultivation, and storage. The problem is not so much the amount of food consumed, but the components of food and how it is prepared, which influences cravings and how much is consumed. Above all that, nutrition has a delayed effect, in that it can take a decade or more for cause and effect to be known.

For example, take lipids, fatty acids like omega-6 and omega-3, and certain vitamins and phytochemicals. Scientists have taken decades to understand lipids and have gone back and forth on their guidance on lipids, and businesses have peddled thousands of lipid supplements, thoroughly confusing consumers. How do we expect consumers to understand and follow? The general public cannot self-configure nutrition and governments and food businesses make it harder for them, which reflects in the diet-related incidence of disease.

Tailored Nutritional Solutions are Needed

The solution is in tailoring nutrition for the public by age, gender, diet-type, and medical disposition; it is not in randomly fortifying products or selling thousands of “healthy” products, which create excesses and imbalances. Responsible businesses are needed to carry this out.

Tailored lipids alone are an inexpensive innovative solution to a large part of the problem, since imbalanced lipid intake is associated with almost all chronic diseases and hormonal issues. Ninety million Americans are affected by diabetes and pre-diabetes, 1.6 million by annual cancer diagnoses, 54.4 million by arthritis, 26 million by asthma, and 80% of women suffer from hormonal imbalances; each of which can be abated with tailored lipids.

But tailoring nutrition requires immense capital. For example, food businesses that typically employ an unskilled workforce will have to hire a highly skilled workforce despite thin margins, and these specialized food tailoring businesses will not be able to rely upon volume for viability. It is difficult to attract investment in such a scenario.

The misalignment of financial incentives has created a bizarre system where the workforce for the foundation of health, i.e. nutrition, is highly unskilled but the healthcare workforce for correcting ill effects of bad nutrition is highly skilled.

Patents Nurture Innovation

The patent system has a vital role in this because the limited exclusivity provided by a patent can provide a higher price point (which will still be a fraction of drug prices), which would allow the specialized nutritional product platform employing a skilled workforce to be developed and implemented. These products can be subsidized for lower income groups in partnership with the governments. The most valuable asset of a nation is the health of its citizens, incentivizing citizens’ health using patents is a good public policy.

Therefore, the foundation of health, i.e. nutrition needs innovation, and governments around the world must support it by creating a sufficiently protective legal environment to nurture such innovation. The result: suffering from diseases and health care spending will decrease; productivity, per capita income, and tax income to the government will increase. And we all win!

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