Three California grape growers challenge USDA’s patent on Autumn King, Scarlet Royal

| Dec 24, 2012 | Patent Law

Near the turn of last century, researchers at the USDA San Joaquin Valley Agricultural Services Center in Parlier, California, developed two new grape breeds. They sent plant stock to area grape-growers before they sought patents for the new breeds in 2004, which they obtained in 2006.

Now, that chain of events is the subject of a lawsuit brought by grape-growers who allege that the USDA should not have patents on the two grape varieties because they were in the public arena for more than a year before the request was made.

The case was filed in 2007 by Gerawan Farming, Inc.; Delano Farms Co.; and Four Star Fruit Inc.

The plaintiffs allege that the Autumn King and Scarlet Royal grape varietes were available to growers for more than a year before the USDA moved to patent them. Under federal law, material that has been in the public realm for over a year cannot properly be patented. (A third variety, called the Sweet Scarlet, was dropped from the lawsuit as part of an agreement between the parties.)

The plaintiffs also claim that the California Table Grape Commission, which partially funded the development of the new breeds, met with the USDA and hatched a scheme to allow the nurseries to grow and sell the Autumn King and Scarlet Royal for as long as it took them to develop a revenue stream, at which point they’d start charging costly royalties because the USDA held the patent to the varieties and the Grape Commission held the license.

Neither the USDA nor the California Table Grape Commission have responded at length to the plaintiffs’ claims.

The case will be heard before a jury starting May 14.

Source: The Packer, “May trials set in two California grape cases,” Coral Beach, Dec. 18, 2012

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