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Court
Upholds Denial of Broccoli Sprout Patent
The
Packer Magazine, September 3, 2002
By
Jim Offner
(Sept. 3) BALTIMORE — A handful of
producers of broccoli sprouts are looking forward to getting back to business
without the weight of court cases or patent claims after the U.S. District Court
of Appeals in Maryland ruled in their favor in a patent-infringement suit
brought by Baltimore-based Brassica Protection Products LLC and Johns Hopkins
University.
In a 3-0 decision that reaffirmed its ruling of a year earlier, the court struck
down claims on three patents licensed to Brassica by Johns Hopkins for
production of broccoli sprouts that contain concentrated amounts of a
cancer-preventing compound.
The court also found that the five defendants — growers Banner Mountain of
Sacramento, Calif.; Edrich Farms, Randallstown, Md.; Sunrise Farms, Neenah,
Wis.; Harmony Farms, Auburn, Wash.; and Sungarden Sprouts/International
Specialty Supplies, Cookeville, Tenn. — had legal title to their products.
“BPP disagrees with this decision by the court of appeals and is considering
its options for further review or appeal,” said Anthony Talalay, Brassica’s
chief executive officer.
Talalay’s father, Paul, is the Johns Hopkins researcher who in September 1997
announced that he had found powerful anti-cancer activity in broccoli sprouts.
Paul Talalay runs the world’s only laboratory devoted to studying the nutrient
properties of such commodities as broccoli, cauliflower and cabbage.
Tony Talalay added that Brassica would continue to market Broccosprouts, which
the company guarantees to contain at least 20 times the antioxidant sulforaphane
glucosinolate as mature, cooked broccoli.
“We do not believe that this ruling will have a significant impact on our
business,” Talalay said.
He pointed out that competitors had continued to grow broccoli sprouts anyway.
“Broccosprouts sales have grown vigorously over the past three years, not
because of their patent protection, but because consumers have discovered that
the product provided by BPP and its partner growers is unique in the
marketplace,” Talalay said. “We assure our loyal customers that
Broccosprouts broccoli sprouts meeting the highest standards will remain
available to them. We will continue to offer the best sprouts in the
industry.”
The legal wrangling got under way in 1998. In May of that year, Brassica sent
letters to most of the sprout producers in the U.S., advising them of the
company’s patent claims. Brassica said in the letter that it would grant
permission to certain sprout growers and seed companies to grow the sprouts,
provided the growers could meet Brassica’s standards for growing, distribution
and safety. Growers who are accepted would be charged a licensing fee.
info available: U.S. District Judge William M. Nickerson, in a brief
accompanying the ruling, said that patent claims Brassica had made were invalid
because information about growing sprouts before the two-leaf stage was already
available in the public domain.
“The facts relevant to the construction and the validity of the plaintiffs’
patent claims are fairly uncomplicated and largely undisputed,” Nickerson
said. “Plaintiffs do not dispute that the prior art taught that cruciferous
seeds, including broccoli, can be germinated and consumed as a food product in
the sprout stage. … Plaintiffs also do not claim that their patents involve
doing 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 of
agriculture, said Joseph Kromholz, a patent attorney with the Milwaukee firm
Ryan, Kromholz & Manion S.C., who argued the defendants’ case in the
appeal.
“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 this
litigation through all the way through appeal,” Kromholz said. “Had they
settled, others could have been sued or forced to take a license.”
More important for the defendants, however, it isn’t the brand but the
commodity itself that matters.
“People are finding out that sprouts have a lot of nutriceuticals in them that
grow into full-size plants, but the amount of nutriceuticals in them don’t
increase as the plants grow; the chemicals get diluted,” said Bob Rust, owner
of 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 is
ill-conceived.
“Food is food, and medicine is medicine,” Lynn said. “And affordability of
the food supply is important, especially those foods that offer
disease-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 the
larger sprouters have gotten larger and the smaller sprouters have
disappeared.”
Talalay wouldn’t discuss Brassica’s next move. Kromholz indicated that the
options were few, should the company decide to press on with its case.
“I think that, essentially, (an appeal) is unlikely,” he said. “I don’t
believe the (U.S.) Supreme Court would see a need to step in, given the
unanimous decisions already made. And I don’t think the court of appeals will
either rehear the case or reconsider the case.”
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