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International Specialty Supply Supplying Sprout Companies Throughout the World
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Cancer-fighting
Broccoli Sprouts Patent Fight American Lawyer Media November
29, 2000 In
1980, Greg Lynn decided to abandon the rigors of classroom teaching and look for
a simpler life. He and his wife, Lorna, established Harmony Farms in Washington
State. Originally,
their products -- sprouts grown from seeds such as alfalfa -- sold in
countercultural co-ops and natural food stores. Eventually, consumer awareness
of some sprouts' cancer-fighting potential built demand. Today Harmony Farms'
products are sold in supermarkets in Washington, Oregon, Idaho and Alaska. But
now Lynn and four other commercial sprout-raisers have become targets of patent
suits brought by Johns Hopkins University and Brassica Protection Products, a
university-licensed company based in Baltimore. The suits claim infringement of
three patents. Brassica has also sued broccoli sprouters in Maryland, Wisconsin
and California. NOTHING PATENTABLE THEREDelbert
Barnard of Renton, Wash.'s Barnard & Pauly is representing Lynn in federal
court in Seattle. Brassica v. Harmony Farms, No. C00-1544Z. "Our
position is that [Brassica] hasn't made any developments as far as new seeds are
concerned," Barnard said. "They haven't done any development as far as
the 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-reported
research at Johns Hopkins on the cancer-fighting properties of compounds found
in cruciferous vegetables, especially broccoli. Today Brassica licenses its own
broccoli 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 for
their research. The '895 patent was for a method of preparing a food product
from cruciferous seeds, and the '567 and '505 patents were for cancer
chemoprotective food products. Research
shows that the health benefits of broccoli derive from a compound, sulforaphane
glucosinolate, an indirect anti-oxidant. Feeding it to lab rats seems to block
mammary and colon tumors. The '567 and '505 patents cover the technology for
broccoli sprouts harvested before the two-leaf stage, which is thought to
enhance cancer protection. Barnard
said that the health benefits of eating recently germinated seeds have always
been known, "but somehow Brassica [was] able to convince the Patent Office
not to use this prior art against them." In his
reply brief, Barnard says that the claims in the '895 patent are "fatally
vague and indefinite" and that the seed-sprouting technology covered by the
'567 and '505 patents is already "made in this country by another who had
not abandoned, suppressed or concealed it." He included as evidence a
handout published by the University of Nebraska's Cooperative Extension Service.
Brassica's
lawyers were not available for comment. However, in their complaint, they noted
that 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 of
the claims of the '895 patent." Last
year, Brassica successfully brought suit in federal court against a
Pennsylvania-based seed sprouter. Brassica v. Sproutman, No. 99-350. But
that doesn't mean Brassica will always prevail, says Barnard: "Our position
is that what is in the sprout is a natural substance" and therefore not
entitled to patent protection. |