Sprout Growers Fight Suit by Corporate Opportunists

SproutGrowers Fight Suit By 'Corporate Opportunists'

FromThe January 2001 Issue of Natural Foods Merchandiser

Apair of longtime sprout-growers in Washington State are going to court againstone of the country's most prestigious universities to prove that you can'tpatent nature.

Gregand Lorna Lynn, owners of Harmony Farms in Auburn, Wash., say they'll keepgrowing their broccoli sprouts despite a patent-infringement lawsuit filedagainst them in October in U.S. District Court in Seattle.

Thecouple is being sued by Johns Hopkins University in Baltimore, one of theworld's preeminent cancer research centers, and Brassica Protection Products, acompany that sells BroccoSprouts and holds patent licenses related to JohnsHopkins' broccoli research.

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

InOctober, the Lynns joined four other sprout farmers nationwide in a legal battlewith Johns Hopkins and Brassica. The Lynns, whose 20-year-old farm posts morethan $500,000 in yearly sales, say they'll spend as much as $250,000 to fightthe lawsuit, even though broccoli sprouts account for only 5 percent of theirrevenues.

"Mycomplaint," Greg Lynn said, "is that Mother Nature should be the onegetting the royalties here, and not some researchers milking the money-richcancer research cow or some corporate opportunists extorting their way intosprout industry domination."

That'snot the way Johns Hopkins, or Brassica Products, see it.

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

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

Usingfunding from the National Institutes of Health, the researchers found that3-day-old sprouts have a much higher concentration of SGS than does cookedmature broccoli. As a result, U.S. patents related to the germination andharvesting of broccoli were awarded in 1998 and 1999 to Johns Hopkins. Thepatents protect a method of growing sprouts that are especially high inantioxidants, the university says.

JohnsHopkins University spokesman Dennis O'Shay said the patent infringement lawsuitis not about who can grow broccoli, but about the particular way thatantioxidant-rich broccoli is grown.

"Ithas to do with the very recent discovery that the sprouts, at a very specificpoint 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 thatdiscovery commercially." O'Shay said he could not detail the method becauseof the ongoing litigation.

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

TheLynns and other growers claim the sprout-growing techniques detailed in thepatents have been around for years, and differ little from the way the sproutsgrow naturally.

Despitethe growers' protests, however, if researchers can show they have increased thelevels of certain antioxidants in the plants, the patents are likely valid, saidRochelle Seide, biotechnology chair of the American Intellectual PropertyLawyers Association.

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

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

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

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