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Sprout Growers Fight Suit By 'Corporate Opportunists'

From The January 2001 Issue of Natural Foods Merchandiser

A pair of longtime sprout-growers in Washington State are going to court against one of the country's most prestigious universities to prove that you can't patent nature.

Greg and Lorna Lynn, owners of Harmony Farms in Auburn, Wash., say they'll keep growing their broccoli sprouts despite a patent-infringement lawsuit filed against them in October in U.S. District Court in Seattle.

The couple is being sued by Johns Hopkins University in Baltimore, one of the world's preeminent cancer research centers, and Brassica Protection Products, a company that sells BroccoSprouts and holds patent licenses related to Johns Hopkins' broccoli research.

"I was given a choice [by Brassica]," Greg Lynn said. "Either join them as a licensed grower or be a defendant in a lawsuit." Lynn and his wife declined last summer to join Brassica--it was the second time they'd been asked to--and decided to keep selling on their own.

In October, the Lynns joined four other sprout farmers nationwide in a legal battle with Johns Hopkins and Brassica. The Lynns, whose 20-year-old farm posts more than $500,000 in yearly sales, say they'll spend as much as $250,000 to fight the lawsuit, even though broccoli sprouts account for only 5 percent of their revenues.

"My complaint," Greg Lynn said, "is that Mother Nature should be the one getting the royalties here, and not some researchers milking the money-rich cancer research cow or some corporate opportunists extorting their way into sprout industry domination."

That's not the way Johns Hopkins, or Brassica Products, see it.

"[We] don't have any desire to dominate the sprout industry," said Antony Talalay, Brassica's chief executive officer and the son of the Hopkins researcher whose discoveries led to the patent. "I want people to get good, proper broccoli sprouts from these discoveries."

For years, researchers have been gathering evidence that antioxidants found in vegetables such as cauliflower and broccoli can help protect against cancer. Johns Hopkins researchers were the initial discoverers that broccoli sprouts have high concentrations of sulforaphane glucosinolate (SGS), which can boost the body's antioxidant levels.

Using funding from the National Institutes of Health, the researchers found that 3-day-old sprouts have a much higher concentration of SGS than does cooked mature broccoli. As a result, U.S. patents related to the germination and harvesting of broccoli were awarded in 1998 and 1999 to Johns Hopkins. The patents protect a method of growing sprouts that are especially high in antioxidants, the university says.

Johns Hopkins University spokesman Dennis O'Shay said the patent infringement lawsuit is not about who can grow broccoli, but about the particular way that antioxidant-rich broccoli is grown.

"It has to do with the very recent discovery that the sprouts, at a very specific point in their growth, exhibit a previously unknown property," said O'Shay. "And it has to do with who has the right, under the law, to exploit that discovery commercially." O'Shay said he could not detail the method because of the ongoing litigation.

The other sprout growers being sued are Edrich Farms in Maryland, VegPak in Maryland, Sunrise Farm in Wisconsin and Banner Mountain in Sacramento, Calif. Last year, The Sproutman in Pennsylvania also was sued but settled out of court and went off the market.

The Lynns and other growers claim the sprout-growing techniques detailed in the patents have been around for years, and differ little from the way the sprouts grow naturally.

Despite the growers' protests, however, if researchers can show they have increased the levels of certain antioxidants in the plants, the patents are likely valid, said Rochelle Seide, biotechnology chair of the American Intellectual Property Lawyers Association.

"You can't just patent things that exist in nature. You have to show that the 'hand of man' has changed or created something," Seide said.

Because the patents have already been issued, she said, the defendants must show "clear and convincing" evidence that they are invalid.

Greg Lynn says he thinks that once a court hears what John Hopkins claims to be their proprietary process, the patents will become null and void.

"You can't just come along and say you've created something when you haven't," Lynn said.