The Battle Over Broccoli

TheBattle Over Broccoli 

FormerPresident George Bush isn't the only one who finds broccoli a pain.  AskGreg Lynn

April/May2002

Law& Politics

byPeter Floss

AllGreg Lynn of Harmony Farms in Auburn ever wanted was to grow and sell broccolisprouts.  Instead, he's spent the past two years tangled in anintellectual-property lawsuit that questions who owns broccoli seeds and howthey may be harvested.

"Isell sprouts; I don't sell cancer cures," says Lynn.  Yet that isprecisely what Brassica Protection Products Claims Lynn's farm is doing. In October 2000, the company filed suit against a seed dealer and five farms,including Lynn's, for infringing their patent.  It started in 1997, whenJohns Hopkins University researchers Paul Talalay and Jed Fahey discovered thatbroccoli sprouts, at a specific point early in their development, often containhigh levels of sulforaphane glucosinolate (SGS), an antioxidant that has beenfound to retard the growth of tumors in lab rats and is believed to be acancer-fighting agent.  Based on their discovery, they patented a method ofcultivating a food product rich in SGS, from certain cruciferous sprouts,eventually obtaining three different method patents.  Sole marketing rightsto the resultant food products were given to Brassica Protection Products, whosechief executive officer, Antony Talalay, is Paul's son.

BrassicaProtection Products defends its patent vigorously, charging a commission tofarmers who grow high-SGS sprouts.  The suits filed in October wereconsolidated into a single lawsuit in the company's home state of Maryland,where a district court issued a summary judgment in favor of Lynn and thedefendants.  Brassica Protection Products has filed an appeal.

AntonyTalalay says, "We believe that they're infringing the patent.  I thinkthe bottom line on this is that Harmony Farms was offered a license anddeclined....  One can look at that behavior and say that they just don'twant to pay the fees."

Lynnsays he doesn't guarantee high levels of SGS in his sprouts, but simply uses thesame seed varieties that are described in the patent - common seeds that havelong been used by farmers. He says,  "The reality is that seeds thatare inherently high in this ingredient will produce sprouts that are also highin this ingredient."  He adds that he's fighting the lawsuit onprinciple and won't come close to recouping his legal costs through broccolisprout sales.

"Werequite confident that it will be overturned on appeal," Talalay says. "We'll let the courts decide."

WhileTalalay would not say how much the licensing fees are, Lynn estimates thatlicensed farmers have to sell their sprouts for twice as much as he does to turn aprofit.

"Youcan't patent nature," says Lynn.  "Just because you findsomething that people didn't already know was there doesn't mean it'spatentable."