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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 this
space to come to the defense of America's sprout growers. Not all sprout
growers, mind you, just the ones that have been locking horns with Brassica
Protection Products (BPP) in a patent war over broccoli sprout production.
Why the raised brows? Since the concept of intellectual property rights is
of major interest to a number of our biggest clients, the preservation of those
rights it critical to our company. And since intellectual property also
happens to be the cornerstone of BPP's attempt to corner the broccoli sprout
market, some questioned whether it was wise for me to challenge BPP publicly.
Illusory Conflict
But in my opinion, comparing the "patentability" of broccoli sprouts
to the technological development of a new fungicide, for example, is like
comparing 'taters and turnips.
BPP contends its discovery that broccoli sprouts contain elevated levels of the
cancer-fighting compound sulforaphane warrants a patent of the
production of broccoli sprouts for human consumption. The U.S. Patent
Office agreed, and issued a patent to BPP in March of 1998.
Many a sprout grower, however, openly scoffed at the patent and continued
producing the sprouts without being licensed through BPP. In defense of
its patent, BPP eventually sued a Pennsylvania grower for infringement and the
grower ultimately settled out of court to avoid a costly legal battle.
In 2000, the U.S. Patent Office re-examined the broccoli sprout patent and
announced in July of last year that it was being upheld. Just a few months
later, BPP initiated another infringement action against five more uncooperative
sprout 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 state
of Maryland. But during a pre-trial hearing this summer, the U.S. District
Court of Maryland acted on a motion by the defense counsel and ruled the
broccoli sprout patent was invalid in the first place.
In its decision, the Court stated that the "Defendants...do not dispute
that (researchers) Fahey and Talalay discovered a new and significant property
of certain types of cruciferous sprouts, i.e., that these sprouts contain high
levels of substances that aid the human body in preventing cancer. The
Defendants do not challenge that Fahey and Talalay also discovered that certain
cruciferous sprouts, such as broccoli and cauliflower, contain much higher
levels of these substances than other cruciferous seeds. Instead,
Defendants contend, and the Court agrees, that merely describing unexpected
beneficial results of a known process does not entitle Plaintiffs to patent that
process."
Lets Hear It For Common Sense
Of course BPP has indicated it will appeal the Court's decision, and in the
meantime will continue to "vigorously protect its intellectual property
rights." But for now at least, sensibility reigns. We'll keep
you updated.
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