Patent War Sprouts Up Over Broccoli

Patent War Sprouts Up Over Broccoli

November 14, 2000
Seattle Times

There’s a battle brewing in the nation’s supermarket produce aisles, next to bags of tossed salad and piles of fresh fruit.

The suddenly popular broccoli sprout – buoyed by research from Johns Hopkins University touting the plant’s cancer-fighting potential – is the focus of a lawsuit pitting independent growers against the university and Brassica Protection Products, a Delaware company that markets the sprouts.

“I was given a choice,” said Greg Lynn, a former schoolteacher who started Harmony Farms in Auburn with his wife in 1980. “Either join them as a licensed grower or be a defendant in a lawsuit.”

For the second time in two years, Lynn declined this summer to join Brassica as a licensed grower and continued to sell broccoli sprouts on his own. In October, he was sued for patent infringement and is one of six farmers nationwide now in a legal battle with the university and Brassica.

“The purpose of the complaint is to ensure that sprouts of uniform high quality were made available to the public,” said Antony Talalay, Brassica’s chief executive officer and the son of noted Hopkins researcher Paul Talalay.

But unlike other patents for plants modified to obtain desirable traits, the three Hopkins patents protect a method of growing sprouts that are high in anti-oxidants – sprouts from ordinary but select broccoli seeds.

That has angered other growers who say the sprout-growing techniques detailed in the patents have been around for years.

“It doesn’t seem right for someone to come along and patent what nature has developed,” said Jay Louie, president of the International Sprout Growers Association, which counts both independent and Brassica-licensed growers among its 100 members. “We feel that Brassica is using its patent as a leverage to perhaps take over other sprout markets.”

The basis for the patents, awarded in 1998 and 1999, comes from work by Hopkins researchers Talalay and Jed Fahey. The two discovered that broccoli sprouts have high concentrations of sulforaphane glucosinolate (SGS), which can boost the body’s anti-oxidant levels. Using funding from the National Institutes of Health, Talalay and Fahey found that the sprouts have 20 to 50 times the concentration of SGS compared with levels in cooked adult broccoli.

Researchers for years have been gathering evidence that anti-oxidants, found in cruciferous vegetables such as cauliflower and broccoli, can help protect against cancer. Those claims came into doubt when a Harvard University study found earlier this month that a diet rich in fruits and vegetables had little or no effect against some types of cancer, most notably colon and rectal cancer.

Talalay said the packaging on his products, marketed under the name BroccoSprouts, makes no disease-prevention claims.

Broccoli sprouts bring in $25 million a year in sales, a fraction of the overall U.S. sprout market of $450 million.

But Lynn, who sells his sprouts to Seattle supermarket chains, said if he can’t provide all sprout types, he’ll likely lose contracts. “The patent is an insult to the sprouting industry as well as a corporate attack on small farms,” he said.

Despite the growers’ protests, if researchers can show they have increased the levels of certain chemicals in the plants, the patents are likely valid, said Rochelle Seide, a lawyer and 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 the patents are invalid. That battle could cost millions and has sprout growers scurrying to stockpile money for the lawsuits.

The patents had already been challenged and upheld when Brassica and Hopkins sued The Sproutman of Pennsylvania, a case settled last year. Calls to The Sproutman were not immediately returned.

But Delbert Barnard, Lynn’s attorney, isn’t giving up.

“There’s an abundance of case law in our favor because they haven’t invented anything,” Barnard said. “They used old procedures to grow the sprouts and then used known (testing) methods to examine them.”