Brassica Petitions for a Rehearing On Broccoli Sprout Patents

Brassica Petitions for a Rehearing on “Broccoli Sprout” Patents

SproutNet, September 16, 2002

Bob Rust


On September 4, the attorneys for Brassica Protection Products LLC and Johns Hopkins University filed a combined petition for a rehearing and rehearing en banc regarding the cruciferous sprout litigation involving five sprout producers and a seed company.  In its August 21, 2002 decision, the panel affirmed the District Court’s summary judgment that the patents were invalid.  The petition was filed in the United States Court of Appeals for the Federal Circuit.  The defendants are Sunrise Farms, Edrich Farms, Banner Mountain Sprouts, Harmony Farms, and International Specialty Supply with its division Sungarden Sprouts.


The petition for the rehearing is a request that the three judges who heard the appeal and affirmed the lower courts decision, rehear their arguments.  The decision by the Appeals Court was unanimous.  Brassica would need to convince two of those three judges that they had made an incorrect determination that Judge Nickerson, the first judge to hear the case, had not erred in his ruling.


Brassica and Hopkins also requested a hearing en banc.  “En banc” is a French term, which means “by the full court” or “full bench.” When all the members of an appellate court hear an argument, they are sitting en banc.  The first appeal was made before three judges of the US Court of Appeals for the Federal Circuit.   If Brassica and Hopkins were granted their request for an en banc hearing, it likely would be heard in front of eleven of the twelve judges “sitting as a full court” for the US Court of Appeals for the Federal Circuit.


If the request is granted, and if a rehearing results in the court overturning their decision in its entirety, then the case would likely be remanded back to the lower court where the case would be heard.