Broccoli Sprouts Can T Be Patented Judge Says

Broccoli Sprouts Can't Be Patented, Judge Says

Sacramento Business Journal
Celia Lamb
 
A federal judge in Maryland has ruled that a South Sacramento company can sproutall the broccoli seeds it wants.

"Weare basically elated at the results," said Larry Ravitz, owner of BannerMountain Sprouts, which employs eight and sells sprouts to the Raley's Inc.supermarket chain and Northern California wholesalers. "The judge grantedeverything that we asked for."

Theruling addresses a dispute that began last October when Johns Hopkins Universityand Brassica Protection Products, a Maryland company that claimed rights tocommercialize two patents owned by the university, sued Banner Mountain Sproutsand four other companies that sell broccoli sprouts.

 Theuniversity and Brassica claimed the patents gave them and their distributors,who pay the company royalties, the exclusive rights to sprout broccoli seed andsell it as food.

 Theclaims incensed many sprout growers, who believe nobody should have the right topatent a process as natural as growing sprouts from seed. 

"Dowe patent the chicken because it lays an egg?" Ravitz asked rhetorically. 

Thesuit against Banner Mountain Sprouts was combined with the other four andtransferred to the Maryland court. Last week U. S. District judge WilliamNickerson decided the evidence against the five sprout growers wasn't strongenough for a jury trial and granted a summary judgment in their favor. 

Brassicasaid it will appeal the decision, adding, "We are confident of the validityof the Johns Hopkins patents."

InSeptember 1997, Johns Hopkins researchers published studies that showed thesprouts of some kinds of cruciferous vegetables, including broccoli andcauliflower, have high levels of cancer-fighting compounds. Later they filed forpatents, describing the process of growing and harvesting sprouts "to forma food product." 

InJune 1999, Brassica sued in Delaware, claiming patent infringement by a businesscalled Sproutman Inc. 

Sproutmanclaimed that people had known for years that broccoli seeds could be sproutedand eaten, and asked the U. S. Patent and Trademark Office to reexamine thepatent. The office rejected most of the claims, but then reaffirmed them afterBrassica asked for yet another review.

Sproutmansettled out of court, and last year Brassica filed five more suits. 

Inhis decision on those five recent suits, Judge Nickerson said that U. S. patentlaw prevents the granting of patents that describe a "prior art,"meaning a practice that's already been described.

"Plaintiffsalso do not claim that their patents involve doing anything to alter or modifythe natural seeds," Nickerson's decision said. 'They are simply germinated,harvested and eaten."

Attorneysfor the university and Brassica argued that they created a new industry becauseno one was producing or selling broccoli sprouts before. But Ravitz said he hasworked with and sold broccoli sprouts for 25 years.

Thejudge said it's irrelevant whether the industry already existed. "Merelydescribing unexpected beneficial results of a known process" he ruled,"does not entitle plaintiffs to patent that process."