Cancer Fighting Broccoli Sprouts Patent Fight

Cancer-fightingBroccoli Sprouts Patent Fight

ByVictoria Slind-Flor

AmericanLawyer Media

November29, 2000 

In1980, Greg Lynn decided to abandon the rigors of classroom teaching and look fora simpler life. He and his wife, Lorna, established Harmony Farms in WashingtonState.

Originally,their products -- sprouts grown from seeds such as alfalfa -- sold incountercultural co-ops and natural food stores. Eventually, consumer awarenessof some sprouts' cancer-fighting potential built demand. Today Harmony Farms'products are sold in supermarkets in Washington, Oregon, Idaho and Alaska.

Butnow Lynn and four other commercial sprout-raisers have become targets of patentsuits brought by Johns Hopkins University and Brassica Protection Products, auniversity-licensed company based in Baltimore. The suits claim infringement ofthree patents. Brassica has also sued broccoli sprouters in Maryland, Wisconsinand California.

 

NOTHING PATENTABLE THERE

DelbertBarnard of Renton, Wash.'s Barnard & Pauly is representing Lynn in federalcourt in Seattle. Brassica v. Harmony Farms, No. C00-1544Z.

"Ourposition is that [Brassica] hasn't made any developments as far as new seeds areconcerned," Barnard said. "They haven't done any development as far asthe technique of germination is concerned."

Brassica,which is represented by Washington, D.C., patent firm Rothwell, Figg, Ernst& Manbeck, was founded by Dr. Paul Talalay. He conducted well-reportedresearch at Johns Hopkins on the cancer-fighting properties of compounds foundin cruciferous vegetables, especially broccoli. Today Brassica licenses its ownbroccoli sprouters in many states, and even as far away as Japan.

Dr.Talalay and co-inventor Jed Fahay received three patents in the late 1990s fortheir research. The '895 patent was for a method of preparing a food productfrom cruciferous seeds, and the '567 and '505 patents were for cancerchemoprotective food products.

Researchshows that the health benefits of broccoli derive from a compound, sulforaphaneglucosinolate, an indirect anti-oxidant. Feeding it to lab rats seems to blockmammary and colon tumors. The '567 and '505 patents cover the technology forbroccoli sprouts harvested before the two-leaf stage, which is thought toenhance cancer protection.

Barnardsaid that the health benefits of eating recently germinated seeds have alwaysbeen known, "but somehow Brassica [was] able to convince the Patent Officenot to use this prior art against them."

In hisreply brief, Barnard says that the claims in the '895 patent are "fatallyvague and indefinite" and that the seed-sprouting technology covered by the'567 and '505 patents is already "made in this country by another who hadnot abandoned, suppressed or concealed it." He included as evidence ahandout published by the University of Nebraska's Cooperative Extension Service.

Brassica'slawyers were not available for comment. However, in their complaint, they notedthat a request for re-examination was filed with the patent office in late 1999,and that on July 10, 2000, the PTO "confirmed the patentability of all ofthe claims of the '895 patent."

Lastyear, Brassica successfully brought suit in federal court against aPennsylvania-based seed sprouter. Brassica v. Sproutman, No. 99-350. Butthat doesn't mean Brassica will always prevail, says Barnard: "Our positionis that what is in the sprout is a natural substance" and therefore notentitled to patent protection.