Siding against three growers, a federal court has ruled that the California Table Grape Commission has valid patent licenses for the scarlet royal and autumn king grape varieties.
The Jan. 9 decision by the U.S. Court of Appeals for the Federal Circuit rejected arguments from a 2007 lawsuit by Gerawan Farming, Delano Farms Co. and Four Star Fruit Inc., that the grapes were in the public domain for more than a year in 2004 when the U.S. Department of Agriculture requested patents.
Federal law prohibits patenting anything in the public realm for a year or more.
The commission and the USDA — which developed the fruit in work funded by the commission — had argued the grapes were not legally in the public realm. They contended other growers — cousins Jim Ludy and Larry Ludy — obtained, without permission, plant stock for the varieties from a tractor driver at a USDA experimental breeding station.
The three growers in the suit had paid the commission’s fee, but argued unauthorized plantings by others meant the grape varieties were in public use before the patent applications were filed. The USDA received patents in 2006 for both varieties.
“(B)ecause the evidence at trial was sufficient to support the district court’s finding that the patented plant varieties were not in public use prior to the critical date, we need not address the question whether use of invention by one who has misappropriated that invention … can ever qualify as an invalidating public use,” William Bryson, one of three judges on the federal panel, wrote in the ruling.
“We are pleased by the court of appeals’ decision affirming the validity of the patents on autumn king and scarlet royal,” said Tom Saunders, an attorney for the California Table Grape Commission. “Years of effort went into inventing these important table grape varieties, which have greatly benefited the California industry. We look forward to putting this legal dispute behind us.”
The trial judge, Sam Haddon, ruled in October that cultivation of ill-gotten plant stock did not constitute public use. That decision focused on what turned out to be unauthorized possession of grape vine plant stock that the Ludys propagated and planted.
Haddon wrote that evidence and testimony showed the Ludys got the plant stock immediately following an August 2001 open house when the grape commission and USDA showed the grape varieties, which were in the experimental phase at the agency’s breeding program.
Commission president Kathleen Nave told Larry Ludy during the open house that growers could not view the varieties in the field because of plans to patent them. He and Jim Ludy asked a USDA employee they knew at the breeding station to get them some “sticks” from the unreleased varieties, according to testimony.
Haddon wrote in his decision that the USDA employee, Rodney Klassen, who did pruning and other field work at the operation, provided the Ludys with grape plant stock. Testimony indicated Larry and Jim Ludy, as well as Jim’s brother Jack Ludy, along with Klassen, all knew the plant stock should not have been released.
The Ludys propagated thousands of vines in plain view in more than one location, the judge wrote. Eventually some of the vines produced enough grapes to market. However, because of the patent issue, they were sold as thompson seedless, according to the judge’s ruling.
The planting and sale of the grapes by the Ludys was the heart of the other grower’s “public use” argument against the USDA and the commission.
However, the judge said, even though the vines were in public view the grapes they produced were not in public use because the plant stock had been ill-gotten and the fruit was not marketed as the named varieties.