Scarlet Royal table grapes.
Scarlet Royal table grapes.

The California Table Grape Commission and the U.S. Department of Agriculture are set to face off with grape growers in federal court June 10 for a trial that questions whether the commission and the USDA can retain patents for two grape varieties.

U.S. District Court Judge Sam Haddon reserved five days for the trial, which is finally getting underway five and a half years after growers filed the case in November 2007.

The growers requesting that the patents be rescinded are Delano Farms Co., Four Star Fruit Inc. and Gerawan Farming Inc. They almost didn’t get their day in court because of a lower court ruling that they didn’t have the right to sue the government. The growers won an appeal of that decision, but the USDA appealed to a higher authority.

The question was resolved in November 2012 when the U.S. Supreme Court declined to hear the case, clearing the way for the patent trial.

Federal trial begins June 10 on table grape patentsThe growers contend the patents for Scarlet Royal and Autumn King grapes should be rescinded because the grapes were in the public domain for more than a year at the point the USDA requested patents in 2004.

According to court documents, the agency received patents in 2006 for both varieties. Federal law prohibits the patenting of anything that has been in the public realm for a year or more preceding a patent request.

Researchers at the USDA’s San Joaquin Valley Agricultural Sciences Center in Parlier, Calif., developed the varieties, along with the Sweet Scarlet variety, with partial funding by the grape commission, according to court documents.

Delano, Four Star and Gerawan contend growers had access to the plant stock and were growing the three varieties for years before the patents were issued.

Federal trial begins June 10 on table grape patentsThe parties reached an agreement on the Sweet Scarlett variety in November 2012, and it was removed from the case. With that agreement there are no longer patent restrictions on the use of the variety in the U.S., but there are still protections in place in some foreign countries.

In their original complaint, the grape growers also challenged the commission’s right to hold the license for the varieties and charge royalties for them. The growers also took issue with the fact that the commission sub-licensed only three nurseries for the patented varieties.

The growers contended the commission and the USDA developed a “secret scheme” to create a revenue stream for the commission via royalty fees and allow the three nurseries to profit also. The commission splits the royalties with USDA, with 60% going to the commission’s research and promotional efforts, according to court documents.

All of the growers’ claims in the patent case — except for the question of the validity of the patents in relation to the public domain issue — have previously been dismissed.