Patent Battle a Big Victory for Farmers

Patent Battle a Big Victory for Farmers

Capital Press

September 13, 2001

By Cookson Beecher

 

Agriculture scored a victory in a recent legal decision that ruled in favor of a group of farmers who were being used for patent infringement for growing and selling broccoli sprouts.

 

At the heart of the lawsuit, which was launched several years ago against five sprout operations across the country, is this question:  Can the discovery of a beneficial property in a food product give the discoverer of that property the right to patent the product.

 

In part, that's what Johns Hopkins University and Brassica Protection Products LLC were claiming in their lawsuit against the sprouters.

 

But last month, the United States Court of Appeal in Maryland ruled 3-0 in the sprouters' favor, striking down three of the patents involved in the case and affirming the district court's earlier ruling in the sprouters' favor.

 

In its conclusion, the appellate court said that the cancer-fighting properties of the sprouts are inherent properties of the sprouts put there by nature, not by Brassica.

 

The decision also noted that "while Brassica may have recognized something quite interesting about these sprouts, it simply has not invented anything new."

 

In 1997, three researchers at Johns Hopkins discovered that sprouts from certain varieties broccoli contain at least 20 times the amount of cancer-fitting antioxidant that contained in cooked mature broccoli.

 

Their research also revealed which varieties of broccoli, when harvested prior to the two-leaf stage, held the highest amounts of the cancer-fighting properties.

 

The next year, the U.S. Patent and Trademark Office issued sprout-related patents to two of the researchers, Paul Talalay and Jed Fahey.

 

Brassica Protection Products, with Talalay's son Anthony as CEO became the exclusive worldwide licensee of this technology.

 

Growers licensed by Brassica must follow certain sprouting procedures and pay royalties to Brassica, a portion of which goes to fund further cancer-related research.

 

The five sprout farmers involved in the case, all of whom continued to sell their broccoli sprouts without being licensed by Brassica, were sued for patent infringement.

 

A summons sent to the sprouters said that the patents involve a "novel method" of germinating and harvesting certain varieties of broccoli seeds to ensure that the sprouts have high amounts of cancer-preventing substances.

 

But two of the sprouters, Greg Lynn, co-owner of Harmony Farms in Auburn, Wash., and Larry Ravitz, owner of Banner Mountain Sprouts in Sacraments, Calif., say that the patents don't describe a method of germinating seeds and harvesting sprouts that is any different from methods sprouters have used for centuries.

 

In its decision, the court also noted that all of the cultivars identified in Brassica's patent are in the public domain. 

 

Carl Borden, an attorney with the California Farm Bureau Federation, said the appellate court decision involves a tremendously important issue for all growers.

 

He compared the Johns Hopkins researchers' discoveries about the healthful benefits of sprouts with discoveries that citrus fruit is rich in Vitamin C, that meat has a lots of protein, that milk contains calcium and that carrots are high in beta carotene - none of which should entitle their discoverers to patents for the production of those commodities.

 

Borden said he is hopeful that the appellate court's ruling will "deter other entrepreneurs from seeking to wrongly exploit what are admittedly important scientific discoveries about the nutritional components of food products."

 

Lynn agrees. "If any precedent had been set where naturally occurring substances using a natural process could be patented, it would have been disastrous for farmers," he said.  "It would mean that scientists and corporations, not farmers, would be the stewards of agriculture.

 

For him, the important questions in this case come down to this:  Can you own nature? and Can you patent life?

 

And while Lynn is ecstatic over the appellate court's ruling, he said that he and the sprouters who went to court on this will be paying the legal expenses for a long time.

 

On the other side of the legal fence, Anthony Talalay said Brassica disagrees with the appellate court's recent decision.  Last week, the company filed a petition for a rehearing with the same court that just heard the case.  He declined to name just who is paying Brassica's legal expenses, saying that as a privately held company, Brassica does not discuss finances.

 

Brassica will continue to market BroccoSprouts, which Talalay says have enjoyed vigorous sales growth in the past three years.