(Sept. 3) BALTIMORE — A handful of producers of broccoli sprouts are looking forward to getting back to business without the weight of court cases or patent claims after the U.S. District Court of Appeals in Maryland ruled in their favor in a patent-infringement suit brought by Baltimore-based Brassica Protection Products LLC and Johns Hopkins University.

In a 3-0 decision that reaffirmed its ruling of a year earlier, the court struck down claims on three patents licensed to Brassica by Johns Hopkins for production of broccoli sprouts that contain concentrated amounts of a cancer-preventing compound.

The court also found that the five defendants — growers Banner Mountain of Sacramento, Calif.; Edrich Farms, Randallstown, Md.; Sunrise Farms, Neenah, Wis.; Harmony Farms, Auburn, Wash.; and Sungarden Sprouts/International Specialty Supplies, Cookeville, Tenn. — had legal title to their products.

“BPP disagrees with this decision by the court of appeals and is considering its options for further review or appeal,” said Anthony Talalay, Brassica’s chief executive officer.

Talalay’s father, Paul, is the Johns Hopkins researcher who in September 1997 announced that he had found powerful anti-cancer activity in broccoli sprouts. Paul Talalay runs the world’s only laboratory devoted to studying the nutrient properties of such commodities as broccoli, cauliflower and cabbage.

Tony Talalay added that Brassica would continue to market Broccosprouts, which the company guarantees to contain at least 20 times the antioxidant sulforaphane glucosinolate as mature, cooked broccoli.

“We do not believe that this ruling will have a significant impact on our business,” Talalay said.

He pointed out that competitors had continued to grow broccoli sprouts anyway.

“Broccosprouts sales have grown vigorously over the past three years, not because of their patent protection, but because consumers have discovered that the product provided by BPP and its partner growers is unique in the marketplace,” Talalay said. “We assure our loyal customers that Broccosprouts broccoli sprouts meeting the highest standards will remain available to them. We will continue to offer the best sprouts in the industry.”

The legal wrangling got under way in 1998. In May of that year, Brassica sent letters to most of the sprout producers in the U.S., advising them of the company’s patent claims. Brassica said in the letter that it would grant permission to certain sprout growers and seed companies to grow the sprouts, provided the growers could meet Brassica’s standards for growing, distribution and safety. Growers who are accepted would be charged a licensing fee.

info available: U.S. District Judge William M. Nickerson, in a brief accompanying the ruling, said that patent claims Brassica had made were invalid because information about growing sprouts before the two-leaf stage was already available in the public domain.

“The facts relevant to the construction and the validity of the plaintiffs’ patent claims are fairly uncomplicated and largely undisputed,” Nickerson said. “Plaintiffs do not dispute that the prior art taught that cruciferous seeds, including broccoli, can be germinated and consumed as a food product in the sprout stage. … Plaintiffs also do not claim that their patents involve doing anything to alter or modify the natural seeds. They are simply germinated, harvested and eaten.”

In fighting the case, the defendants protected interests across the realm of agriculture, said Joseph Kromholz, a patent attorney with the Milwaukee firm Ryan, Kromholz & Manion S.C., who argued the defendants’ case in the appeal.

“I think that the growers in this case did a great service to the industry, because they protected everyone’s rights in the industry by seeing this litigation through all the way through appeal,” Kromholz said. “Had they settled, others could have been sued or forced to take a license.”

More important for the defendants, however, it isn’t the brand but the commodity itself that matters.

“People are finding out that sprouts have a lot of nutriceuticals in them that grow into full-size plants, but the amount of nutriceuticals in them don’t increase as the plants grow; the chemicals get diluted,” said Bob Rust, owner of International Specialty Supplies. “So the advantage of sprouts is hundreds, if not thousands, of times more nutrients.”

Greg Lynn, co-owner of Harmon Farms, said he was ecstatic about the ruling. However, he said the focus on the product’s medicinal qualities is ill-conceived.

“Food is food, and medicine is medicine,” Lynn said. “And affordability of the food supply is important, especially those foods that offer disease-prevention potential.”

The number of sprout growers also has declined, Lynn added.

“Recently, we surveyed the California sprout grower population,” he said. “There were over 100 four years ago. Today there are fewer than 50. So the larger sprouters have gotten larger and the smaller sprouters have disappeared.”

Talalay wouldn’t discuss Brassica’s next move. Kromholz indicated that the options were few, should the company decide to press on with its case.

“I think that, essentially, (an appeal) is unlikely,” he said. “I don’t believe the (U.S.) Supreme Court would see a need to step in, given the unanimous decisions already made. And I don’t think the court of appeals will either rehear the case or reconsider the case.”