International Specialty Supply
Supplying Sprout Companies Throughout the World
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International Specialty Supply Supplying Sprout Companies Throughout the World
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Seeds of Controversy: Battle is Growing
Between Farmers and Company Over Patented Broccoli Sprouts Boston
Herald At the
heart of the unlikely battle are broccoli sprouts. In the early '90s,
researchers at Johns Hopkins University found that sulforaphane glucosinolate, a
naturally occurring compound in cruciferous vegetables such as broccoli,
cabbage, kale and Brussels sprouts, is a powerful antioxidant that could play a
key role in preventing cancers. Further research revealed that broccoli sprouts
- tiny plants only a couple of days old - contain a much higher concentration of
SGS than mature broccoli. The
findings were duly reported in the media and quickly forgotten by a fickle
public. But Johns Hopkins sought and received a patent for the broccoli sprouts,
which are now exclusively licensed and sold by Brassica Protection Products
under the brand name BroccoSprouts. "The
idea of preventing cancer before it starts is a powerful concept,'' says Tony
Talalay, Brassica's CEO. (Talalay's father, Dr. Paul Talalay, was a member of
the government-funded research team that discovered the sprouts' high SGS
content.) Talalay says that, unlike other health-food fads that have come and
gone - oat bran, anyone? - broccoli sprouts' cancer-fighting properties are
"not cure du jour.'' The research in both human and animal studies, he
says, bears out the claim that SGS is effective in preventing cancer. While
performing their research, says Talalay, the scientists found that certain types
of broccoli contain higher levels of the compound than others; the same proved
to be true for the sprouts. The patented BroccoSprouts product, says Talalay, is
guaranteed to contain a high and consistent level of SGS - achieved, says
Talalay, by using a particular type of seed and growing under controlled
conditions. Only 19 growers in the country are licensed by Brassica to grow
BroccoSprouts. Talalay
is a true believer who says he's "pretty religious'' about getting his
recommended 4 ounces of BroccoSprouts a week. But he, along with the other
Brassica principals (Johns Hopkins owns part of the company), also believes the
patent gives the company the exclusive right to grow broccoli sprouts - any type
of broccoli sprouts, under any conditions. The company has lawsuits pending
against five sprout growers; a sixth was settled out of court. That's
got the rest of the sprout-growing industry steamed. "Our position,'' says
Jay Louie, president of the International Sprout Growers Association, "is
that each sprout grower should have the right to grow whatever sprouts he or she
desires to grow. The process of growing sprouts is in the public domain, and we
can never quite understand how the U.S. Patent Office issued this patent in the
first place.'' Brigid
Quinn, a spokeswoman for the U.S. Patent and Trademark Office, says that while
she is not supposed to talk about individual patents, this one did meet the four
fundamental criteria laid out by the office: "(Patents) have to be new,
useful, nonobvious and fully disclosed in writing.'' Quinn acknowledges that
others have been skeptical about the BroccoSprouts patent. "It went through
the process of re-examination because someone felt it wasn't new or wasn't
nonobvious,'' she said. "It went through another examination, and it was
held up.'' Louie
questions the patent because the researchers didn't create anything new. ``They
discovered - underscore `discovered' - a compound that is inherent in that
sprout that evidently shows some chemoprotective propensity. . . . I'm not an
expert on trademark issues, but sprouts have been grown for decades. The process
of growing sprouts is in the public domain, and Johns Hopkins, in their patent,
has not done anything to alter, change or do anything to a broccoli seed that
would entitle them to a patent. Take a broccoli seed and water it, it's going to
become a sprout.'' Talalay
says that specific production methods help to ensure BroccoSprouts' high levels
of SGS. ``We have carefully specified our growers, the seed they use, the
conditions under which they grow them.'' But at
least one licensed BroccoSprouts grower, who has been in the sprout business for
20 years, says his methods are no different now from what they were before
becoming a licensee. Dick Blackwell, president of API, in Bridgeport, Conn. -
the company that grows BroccoSprouts for New England - says BroccoSprouts are
handled ``really the same way'' all his other sprouts have been for two decades.
Talalay
says that the scientists' discoveries created a market for broccoli sprouts that
didn't previously exist: "Nobody was growing them for years and years; we
have no evidence that people grew them before then.'' But Louie characterizes
that as a ``farfetched generalization.'' Roche
Bros., an area supermarket chain, has been carrying BroccoSprouts for about four
weeks, and produce director Paul Kneeland says the response has been strong and
positive. Acknowledging
that the price of BroccoSprouts is a bit high - about $3 for a 4-ounce container
- Kneeland says that's typical for products positioned as ``health food.'' For
now, he says, the chain won't be carrying another brand of broccoli sprouts,
because with shelf space at a premium, "putting duplicate items out there
doesn't really do it.'' One
grower who says he's been raising broccoli sprouts before the patent was issued
is Greg Lynn of Harmony Farms, near Seattle. ``I was invited by the Johns
Hopkins people to join them as a licensed grower in 1998,'' says Lynn. ``I
looked very carefully at the program and the claims of the patent and I made the
decision that their claims were fraudulent. And since they hadn't developed
their own seed variety, but were using seeds in the public domain, I prepared
myself for a legal battle.'' And a legal battle he got: Lynn is one of the
producers currently being sued for patent infringement by Brassica. Lynn
is unconvinced by the research that high levels of SGS are more beneficial than
moderate levels. ``If someone is making a claim that high levels of anything do
a better job than low levels, I want to see proof - especially if I am being
asked as a consumer to pay more than for other products in the marketplace.'' Robert
Sanderson, president of Jonathan Sprouts, in Rochester, also was approached by
Brassica. ``We were part of the program for a while,'' says Sanderson, ``but I
didn't want to compete on the basis of this patent. . . . I couldn't in good
conscience put other people out of business on the basis of a patent I didn't
think was valid.'' He continues to grow broccoli sprouts and hasn't yet been
ordered by Brassica to stop. But if the patent holders prevail in the current
lawsuits, he says, he will surely be sued - or forced to become a licensee. That's
what's happened to a number of independent sprout growers, says Sanderson, and
while it's been divisive in the industry, Sanderson has sympathy with those who
have become Brassica licensees. ``They're saying they had to do it or lose their
business, or get sued. . . . I think a number of them don't think the patent is
valid, but they have to go along with it for business reasons. One I spoke to
recently said it's secondary to the fact that Brassica has vastly superior
resources and it's foolish to resist them; it's good money after bad.'' Quinn,
of the patent office, points out that new and useful discoveries - as opposed to
inventions - are frequently granted patents. She further cautions that patent
law is highly technical and often counterintuitive. Still,
says Lynn, it's a dangerous precedent - and ``one that should scare the bejeezus
out of the farm community.'' If the sprout growers should ultimately lose in
court, ``It will change the nature of farming forever. . . . The marketplace
will see an influx of higher-priced, value-added products. It'll be a whole new
ballgame for farmers, and a more expensive ballgame for consumers.'' Company OKs home growing
Brassica
Protection Products, the company that grants growers licenses to grow
BroccoSprouts, is trying to protect its patent by suing commercial growers of
nonlicensed broccoli sprouts. But can it also stop individuals from buying
broccoli seeds and sprouting them in big jars in their home kitchens, as many
people have done for years? "Technically,
if you were growing them at home, you'd be infringing (on our patent),'' says
Tony Talalay, Brassica CEO. However, the company doesn't discourage home
sprouters, he says. In
fact, the company allows home sprouters, unlike commercial sprouters, to
purchase the same seed it uses for BroccoSprouts. Caudill Seed Co., of
Louisville, Ky., has an exclusive agreement with Brassica and is forbidden to
supply commercial sprout growers with broccoli seed. But, says Talalay, ``People
can order seeds and sprouting kits from them.'' |