Seeds of Controversy

Seeds of Controversy: Battle is GrowingBetween Farmers and Company Over Patented Broccoli Sprouts
by JaneDornbusch

Wednesday, August 8, 2001

Along with crunchy granola, sprouts once stood as the culinary embodiment oflove and peace. But now, sprout seeds are sowing dissent and anger; some sayit’s nothing less than war, waged on America’s farmers.

At theheart of the unlikely battle are broccoli sprouts. In the early ’90s,researchers at Johns Hopkins University found that sulforaphane glucosinolate, anaturally occurring compound in cruciferous vegetables such as broccoli,cabbage, kale and Brussels sprouts, is a powerful antioxidant that could play akey role in preventing cancers. Further research revealed that broccoli sprouts- tiny plants only a couple of days old – contain a much higher concentration ofSGS than mature broccoli.

Thefindings were duly reported in the media and quickly forgotten by a ficklepublic. But Johns Hopkins sought and received a patent for the broccoli sprouts,which are now exclusively licensed and sold by Brassica Protection Productsunder the brand name BroccoSprouts.

“Theidea of preventing cancer before it starts is a powerful concept,” says TonyTalalay, Brassica’s CEO. (Talalay’s father, Dr. Paul Talalay, was a member ofthe government-funded research team that discovered the sprouts’ high SGScontent.) Talalay says that, unlike other health-food fads that have come andgone – oat bran, anyone? – broccoli sprouts’ cancer-fighting properties are”not cure du jour.” The research in both human and animal studies, hesays, bears out the claim that SGS is effective in preventing cancer.

Whileperforming their research, says Talalay, the scientists found that certain typesof broccoli contain higher levels of the compound than others; the same provedto be true for the sprouts. The patented BroccoSprouts product, says Talalay, isguaranteed to contain a high and consistent level of SGS – achieved, saysTalalay, by using a particular type of seed and growing under controlledconditions. Only 19 growers in the country are licensed by Brassica to growBroccoSprouts.

Talalayis a true believer who says he’s “pretty religious” about getting hisrecommended 4 ounces of BroccoSprouts a week. But he, along with the otherBrassica principals (Johns Hopkins owns part of the company), also believes thepatent gives the company the exclusive right to grow broccoli sprouts – any typeof broccoli sprouts, under any conditions. The company has lawsuits pendingagainst five sprout growers; a sixth was settled out of court.

That’sgot the rest of the sprout-growing industry steamed. “Our position,” saysJay Louie, president of the International Sprout Growers Association, “isthat each sprout grower should have the right to grow whatever sprouts he or shedesires to grow. The process of growing sprouts is in the public domain, and wecan never quite understand how the U.S. Patent Office issued this patent in thefirst place.”

BrigidQuinn, a spokeswoman for the U.S. Patent and Trademark Office, says that whileshe is not supposed to talk about individual patents, this one did meet the fourfundamental criteria laid out by the office: “(Patents) have to be new,useful, nonobvious and fully disclosed in writing.” Quinn acknowledges thatothers have been skeptical about the BroccoSprouts patent. “It went throughthe process of re-examination because someone felt it wasn’t new or wasn’tnonobvious,” she said. “It went through another examination, and it washeld up.”

Louiequestions the patent because the researchers didn’t create anything new. “Theydiscovered – underscore `discovered’ – a compound that is inherent in thatsprout that evidently shows some chemoprotective propensity. . . . I’m not anexpert on trademark issues, but sprouts have been grown for decades. The processof growing sprouts is in the public domain, and Johns Hopkins, in their patent,has not done anything to alter, change or do anything to a broccoli seed thatwould entitle them to a patent. Take a broccoli seed and water it, it’s going tobecome a sprout.”

Talalaysays that specific production methods help to ensure BroccoSprouts’ high levelsof SGS. “We have carefully specified our growers, the seed they use, theconditions under which they grow them.”

But atleast one licensed BroccoSprouts grower, who has been in the sprout business for20 years, says his methods are no different now from what they were beforebecoming a licensee. Dick Blackwell, president of API, in Bridgeport, Conn. -the company that grows BroccoSprouts for New England – says BroccoSprouts arehandled “really the same way” all his other sprouts have been for two decades.

Talalaysays that the scientists’ discoveries created a market for broccoli sprouts thatdidn’t previously exist: “Nobody was growing them for years and years; wehave no evidence that people grew them before then.” But Louie characterizesthat as a “farfetched generalization.”

RocheBros., an area supermarket chain, has been carrying BroccoSprouts for about fourweeks, and produce director Paul Kneeland says the response has been strong andpositive.

Acknowledgingthat the price of BroccoSprouts is a bit high – about $3 for a 4-ounce container- Kneeland says that’s typical for products positioned as “health food.” Fornow, he says, the chain won’t be carrying another brand of broccoli sprouts,because with shelf space at a premium, “putting duplicate items out theredoesn’t really do it.”

Onegrower who says he’s been raising broccoli sprouts before the patent was issuedis Greg Lynn of Harmony Farms, near Seattle. “I was invited by the JohnsHopkins people to join them as a licensed grower in 1998,” says Lynn. “Ilooked very carefully at the program and the claims of the patent and I made thedecision that their claims were fraudulent. And since they hadn’t developedtheir own seed variety, but were using seeds in the public domain, I preparedmyself for a legal battle.” And a legal battle he got: Lynn is one of theproducers currently being sued for patent infringement by Brassica.

Lynnis unconvinced by the research that high levels of SGS are more beneficial thanmoderate levels. “If someone is making a claim that high levels of anything doa better job than low levels, I want to see proof – especially if I am beingasked as a consumer to pay more than for other products in the marketplace.”

RobertSanderson, president of Jonathan Sprouts, in Rochester, also was approached byBrassica. “We were part of the program for a while,” says Sanderson, “but Ididn’t want to compete on the basis of this patent. . . . I couldn’t in goodconscience put other people out of business on the basis of a patent I didn’tthink was valid.” He continues to grow broccoli sprouts and hasn’t yet beenordered by Brassica to stop. But if the patent holders prevail in the currentlawsuits, he says, he will surely be sued – or forced to become a licensee.

That’swhat’s happened to a number of independent sprout growers, says Sanderson, andwhile it’s been divisive in the industry, Sanderson has sympathy with those whohave become Brassica licensees. “They’re saying they had to do it or lose theirbusiness, or get sued. . . . I think a number of them don’t think the patent isvalid, but they have to go along with it for business reasons. One I spoke torecently said it’s secondary to the fact that Brassica has vastly superiorresources and it’s foolish to resist them; it’s good money after bad.”

Quinn,of the patent office, points out that new and useful discoveries – as opposed toinventions – are frequently granted patents. She further cautions that patentlaw is highly technical and often counterintuitive.

Still,says Lynn, it’s a dangerous precedent – and “one that should scare the bejeezusout of the farm community.” If the sprout growers should ultimately lose incourt, “It will change the nature of farming forever. . . . The marketplacewill see an influx of higher-priced, value-added products. It’ll be a whole newballgame for farmers, and a more expensive ballgame for consumers.”

Company OKs home growing

BrassicaProtection Products, the company that grants growers licenses to growBroccoSprouts, is trying to protect its patent by suing commercial growers ofnonlicensed broccoli sprouts. But can it also stop individuals from buyingbroccoli seeds and sprouting them in big jars in their home kitchens, as manypeople have done for years?

“Technically,if you were growing them at home, you’d be infringing (on our patent),” saysTony Talalay, Brassica CEO. However, the company doesn’t discourage homesprouters, he says.

Infact, the company allows home sprouters, unlike commercial sprouters, topurchase the same seed it uses for BroccoSprouts. Caudill Seed Co., ofLouisville, Ky., has an exclusive agreement with Brassica and is forbidden tosupply commercial sprout growers with broccoli seed. But, says Talalay, “Peoplecan order seeds and sprouting kits from them.”