Hope Sprouts Eternal American Vegetable Gardner September

Hope Sprouts Eternal
American Vegetable Gardner
September, 2001
Editorial by Rick Melnick

Some eyebrows went up internally about a year-and-a -half ago when I used thisspace to come to the defense of America's sprout growers.  Not all sproutgrowers, mind you, just the ones that have been locking horns with BrassicaProtection Products (BPP) in a patent war over broccoli sprout production. 

Why the raised brows?  Since the concept of intellectual property rights isof major interest to a number of our biggest clients, the preservation of thoserights it critical to our company.  And since intellectual property alsohappens to be the cornerstone of BPP's attempt to corner the broccoli sproutmarket, some questioned whether it was wise for me to challenge BPP publicly.

Illusory Conflict
But in my opinion, comparing the "patentability" of broccoli sproutsto the technological development of a new fungicide, for example, is likecomparing 'taters and turnips.

BPP contends its discovery that broccoli sprouts contain elevated levels of thecancer-fighting compound sulforaphane warrants a patent of the
production of broccoli sprouts for human consumption.  The U.S. PatentOffice agreed, and issued a patent to BPP in March of 1998.

Many a sprout grower, however, openly scoffed at the patent and continuedproducing the sprouts without being licensed through BPP.  In defense ofits patent, BPP eventually sued a Pennsylvania grower for infringement and thegrower ultimately settled out of court to avoid a costly legal battle.

In 2000, the U.S. Patent Office re-examined the broccoli sprout patent andannounced in July of last year that it was being upheld.  Just a few monthslater, BPP initiated another infringement action against five more uncooperativesprout growers and one seed company.  But then the story took a turn.

New Developments
BPP had all of the lawsuits consolidated for pretrial purposes in its home stateof Maryland.  But during a pre-trial hearing this summer, the U.S. DistrictCourt of Maryland acted on a motion by the defense counsel and ruled thebroccoli sprout patent was invalid in the first place.

In its decision, the Court stated that the "Defendants...do not disputethat (researchers) Fahey and Talalay discovered a new and significant propertyof certain types of cruciferous sprouts, i.e., that these sprouts contain highlevels of substances that aid the human body in preventing cancer. TheDefendants do not challenge that Fahey and Talalay also discovered that certaincruciferous sprouts, such as broccoli and cauliflower, contain much higherlevels of these substances than other cruciferous seeds.  Instead,Defendants contend, and the Court agrees, that merely describing unexpectedbeneficial results of a known process does not entitle Plaintiffs to patent thatprocess."

Lets Hear It For Common Sense
Of course BPP has indicated it will appeal the Court's decision, and in themeantime will continue to "vigorously protect its intellectual propertyrights."  But for now at least, sensibility reigns.  We'll keepyou updated.