Court Upholds Denial of Broccoli Sprout Patent

CourtUpholds Denial of Broccoli Sprout Patent

ThePacker Magazine, September 3, 2002

ByJim Offner

(Sept. 3) BALTIMORE - A handful ofproducers of broccoli sprouts are looking forward to getting back to businesswithout the weight of court cases or patent claims after the U.S. District Courtof Appeals in Maryland ruled in their favor in a patent-infringement suitbrought by Baltimore-based Brassica Protection Products LLC and Johns HopkinsUniversity.

In a 3-0 decision that reaffirmed its ruling of a year earlier, the court struckdown claims on three patents licensed to Brassica by Johns Hopkins forproduction of broccoli sprouts that contain concentrated amounts of acancer-preventing compound.

The court also found that the five defendants - growers Banner Mountain ofSacramento, Calif.; Edrich Farms, Randallstown, Md.; Sunrise Farms, Neenah,Wis.; Harmony Farms, Auburn, Wash.; and Sungarden Sprouts/InternationalSpecialty Supplies, Cookeville, Tenn. - had legal title to their products.

"BPP disagrees with this decision by the court of appeals and is consideringits options for further review or appeal," said Anthony Talalay, Brassica'schief executive officer.

Talalay's father, Paul, is the Johns Hopkins researcher who in September 1997announced that he had found powerful anti-cancer activity in broccoli sprouts.Paul Talalay runs the world's only laboratory devoted to studying the nutrientproperties of such commodities as broccoli, cauliflower and cabbage.

Tony Talalay added that Brassica would continue to market Broccosprouts, whichthe company guarantees to contain at least 20 times the antioxidant sulforaphaneglucosinolate as mature, cooked broccoli.

"We do not believe that this ruling will have a significant impact on ourbusiness," Talalay said.

He pointed out that competitors had continued to grow broccoli sprouts anyway.

"Broccosprouts sales have grown vigorously over the past three years, notbecause of their patent protection, but because consumers have discovered thatthe product provided by BPP and its partner growers is unique in themarketplace," Talalay said. "We assure our loyal customers thatBroccosprouts broccoli sprouts meeting the highest standards will remainavailable to them. We will continue to offer the best sprouts in theindustry."

The legal wrangling got under way in 1998. In May of that year, Brassica sentletters to most of the sprout producers in the U.S., advising them of thecompany's patent claims. Brassica said in the letter that it would grantpermission to certain sprout growers and seed companies to grow the sprouts,provided the growers could meet Brassica's standards for growing, distributionand safety. Growers who are accepted would be charged a licensing fee.

info available: U.S. District Judge William M. Nickerson, in a briefaccompanying the ruling, said that patent claims Brassica had made were invalidbecause information about growing sprouts before the two-leaf stage was alreadyavailable in the public domain.

"The facts relevant to the construction and the validity of the plaintiffs'patent claims are fairly uncomplicated and largely undisputed," Nickersonsaid. "Plaintiffs do not dispute that the prior art taught that cruciferousseeds, including broccoli, can be germinated and consumed as a food product inthe sprout stage. … Plaintiffs also do not claim that their patents involvedoing anything to alter or modify the natural seeds. They are simply germinated,harvested and eaten."

In fighting the case, the defendants protected interests across the realm ofagriculture, said Joseph Kromholz, a patent attorney with the Milwaukee firmRyan, Kromholz & Manion S.C., who argued the defendants' case in theappeal.

"I think that the growers in this case did a great service to the industry,because they protected everyone's rights in the industry by seeing thislitigation through all the way through appeal," Kromholz said. "Had theysettled, others could have been sued or forced to take a license."

More important for the defendants, however, it isn't the brand but thecommodity itself that matters.

"People are finding out that sprouts have a lot of nutriceuticals in them thatgrow into full-size plants, but the amount of nutriceuticals in them don'tincrease as the plants grow; the chemicals get diluted," said Bob Rust, ownerof International Specialty Supplies. "So the advantage of sprouts is hundreds,if not thousands, of times more nutrients."

Greg Lynn, co-owner of Harmon Farms, said he was ecstatic about the ruling.However, he said the focus on the product's medicinal qualities isill-conceived.

"Food is food, and medicine is medicine," Lynn said. "And affordability ofthe food supply is important, especially those foods that offerdisease-prevention potential."

The number of sprout growers also has declined, Lynn added.

"Recently, we surveyed the California sprout grower population," he said."There were over 100 four years ago. Today there are fewer than 50. So thelarger sprouters have gotten larger and the smaller sprouters havedisappeared."

Talalay wouldn't discuss Brassica's next move. Kromholz indicated that theoptions were few, should the company decide to press on with its case.

"I think that, essentially, (an appeal) is unlikely," he said. "I don'tbelieve the (U.S.) Supreme Court would see a need to step in, given theunanimous decisions already made. And I don't think the court of appeals willeither rehear the case or reconsider the case."