Sprout Growers Win Broccoli Lawsuit

SproutGrowers Win Broccoli Lawsuit!


InternationalSpecialty Supply

August11, 2001

Thelawsuit brought on by Brassica Protection Products and Johns Hopkins Universityagainst five commercial sprout producers has “ended” with a verdictin favor of the sprout producers.

Fivesprout companies and one seed company was sued by BPP and JHU for infringingon three patents by producing broccoli sprouts that are particularly high inbiochemicals that prevent cancer.  Thosecompanies included Banner Mountain (CA), Edrich Farms (MD), Harmony Farms (WA) andSunrise Farms (WI).  It also included ISS for selling seed, and ISS’ssprouting division, Sungarden Sprouts for selling sprouts.

In asummary judgment, the Honorable Judge William M. Nickerson of the USDistrict Court of Maryland ruled that all three of the broccoli sprout patentsare invalid.

Thegrowers presented the question to the court “Can a plant (broccolisprouts), long well known in nature and cultivated and eaten by humans fordecades, be patented merely on the basis of recent realization that the planthas always had some heretofore unknown but naturally occurring beneficialfeature?”.  The court answered the question with a definitive”No!”

Acourt rarely issues summary judgment.  Patents enjoy a presumption ofvalidity, which can only be overcome by clear and convincing evidence.  Inorder for the growers to get a summary judgment they needed to submit such clearand convincing evidence of invalidity so as “no reasonable finder of factcould conclude otherwise.”

Ifthere were any doubt about any issues of fact, the court would need to rule infavor of Brassica.  In this case,the growers presented such a clear and concise representation of the factsthat the court determined them to be undisputable.

Thepatents were written in such a confusing, convoluted way that it took thisdefendant 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 goldenpatents were actually painted bricks.

In hiscourt brief accompanying the ruling, Judge Nickerson, wrote, “The factsrelevant to the construction and the validity of the Plaintiffs’ patent claimsare fairly uncomplicated and largely undisputed.  Plaintiffs do not disputethat the prior art taught that cruciferous seeds, including broccoli, can begerminated and consumed as a food product in the sprout stage… Plaintiffsalso do not claim that their patents involve doing anything to alter or modifythe natural seeds.  They are simply germinated, harvested and eaten.”

Hecontinued, “In construing the claims at issue here, the Court finds thatthey describe nothing more than germinating sprouts from certain cruciferousseeds and harvesting those sprouts as a food product”…Phrases in theclaims such as, “rich in glucosinolates,” or “containing highPhase 2 enzyme potential and non-toxic levels of indole glucosinolates and theirbreakdown products and goitrogenic hydroxybutenyl glucosinolates,” simplydescribe the inherent properties of certain cruciferous seeds…

Plaintiffsattempted … to argue that the claim language, “identifying seeds whichproduce cruciferous sprouts . . . containing [the desired properties]”introduces a new “selection” step that was not a part of the priorart.  All this step entails, however, is choosing to do something overanother, in this case, choosing to grow broccoli instead of cauliflower sproutsinstead of cabbage, cress, mustard or radish sprouts.  Any process could beprefaced by a similar “selection” step.  Certainly, that onefirst chooses to perform a particular process cannot be enough to make theprocess “New”…Thus, the Court finds that the patents-in suit areinvalid by anticipation.

Brassicahas until August 24 to decide if they wish to appeal the ruling.