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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820 East 20th Street Cookeville, TN 38501 USA 931 526 1106
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Sprout
Growers Win Broccoli Lawsuit! SproutNet International
Specialty Supply August
11, 2001 The
lawsuit brought on by Brassica Protection Products and Johns Hopkins University
against five commercial sprout producers has "ended" with a verdict
in favor of the sprout producers. Five
sprout companies and one seed company was sued by BPP and JHU for infringing
on three patents by producing broccoli sprouts that are particularly high in
biochemicals that prevent cancer. Those
companies included Banner Mountain (CA), Edrich Farms (MD), Harmony Farms (WA) and
Sunrise Farms (WI). It also included ISS for selling seed, and ISS's
sprouting division, Sungarden Sprouts for selling sprouts. In a
summary judgment, the Honorable Judge William M. Nickerson of the US
District Court of Maryland ruled that all three of the broccoli sprout patents
are invalid. The
growers presented the question to the court "Can a plant (broccoli
sprouts), long well known in nature and cultivated and eaten by humans for
decades, be patented merely on the basis of recent realization that the plant
has always had some heretofore unknown but naturally occurring beneficial
feature?”. The court answered the question with a definitive
"No!” A
court rarely issues summary judgment. Patents enjoy a presumption of
validity, which can only be overcome by clear and convincing evidence. In
order for the growers to get a summary judgment they needed to submit such clear
and convincing evidence of invalidity so as "no reasonable finder of fact
could conclude otherwise." If
there were any doubt about any issues of fact, the court would need to rule in
favor of Brassica. In this case,
the growers presented such a clear and concise representation of the facts
that the court determined them to be undisputable. The
patents were written in such a confusing, convoluted way that it took this
defendant a month of studying to realize that they did not say anything.
The attorneys for the growers were able to show the court that the golden
patents were actually painted bricks. In his
court brief accompanying the ruling, Judge Nickerson, wrote, "The facts
relevant to the construction and the validity of the Plaintiffs' patent claims
are fairly uncomplicated and largely undisputed. 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." He
continued, "In construing the claims at issue here, the Court finds that
they describe nothing more than germinating sprouts from certain cruciferous
seeds and harvesting those sprouts as a food product"...Phrases in the
claims such as, "rich in glucosinolates," or "containing high
Phase 2 enzyme potential and non-toxic levels of indole glucosinolates and their
breakdown products and goitrogenic hydroxybutenyl glucosinolates," simply
describe the inherent properties of certain cruciferous seeds... Plaintiffs
attempted ... to argue that the claim language, "identifying seeds which
produce cruciferous sprouts . . . containing [the desired properties]"
introduces a new "selection" step that was not a part of the prior
art. All this step entails, however, is choosing to do something over
another, in this case, choosing to grow broccoli instead of cauliflower sprouts
instead of cabbage, cress, mustard or radish sprouts. Any process could be
prefaced by a similar "selection" step. Certainly, that one
first chooses to perform a particular process cannot be enough to make the
process "New"...Thus, the Court finds that the patents-in suit are
invalid by anticipation. Brassica
has until August 24 to decide if they wish to appeal the ruling. |