The Broccoli Sprout Saga
The story of the most famous and controversial sprout in America.
September 17, 1997
The news out of Johns Hopkins University rocked to sprout world. We were on the cover (above the fold too) of the Wisconsin State Journal and on Madison, WI TV - ABC News. Our business soared because we were the only growers in Wisconsin that could find Broccoli seed to sprout, and we were offering Broccoli Sprouts by September 24!
October 19, 1999
Patent #5,968,567 (along with #5,725,895 and #5,968,505) gave the JHU Drs. sole rights to Broccoli Sprout production. The sale of seed intended to produce Broccoli Sprouts and all Broccoli Sprouts had to be produced by or licensed by the patent holders. Dr. Paul Talalay had formed a corporation (Brassica Protection Products) to "...exploit the financial benefits of his [my] findings." Upon receipt of this patent, BPP sent out cease and desist letters to all sprout growers, informing us that if we were not licensed by them, we were in violation of this patent and would suffer legal consequences.
This formed a rift in the sprout industry. Growers who had licenses (and paid BPP heavily for the license) were angry at those of us who were growing and selling Broccoli Sprouts without a license and we (or at least The Sproutpeople and a few other growers we know) thought they were sell-outs for buying into this mercenary venture.
BPP started suing to uphold their patent. Many growers stopped growing for fear of litigation. The original suit was settled out of court prior to any decision made by the court and the grower who had been sued ceased Broccoli Sprout production.
BPP had formed a partnership with the Sholl Group of Minnetonka, MN. The Sholl Group was a subsidiary of Green Giant Fresh Inc.. They had (and have) a whole lot more cash than any sprout farmer, so they could always count on buying a victory by outlasting anyone they sued - if it ever went far enough into the courts.*
BPP sued 5 non-licensed growers in 2000.
August 11, 2001
Sprout Growers Win Broccoli Lawsuit!
The lawsuit brought on by Brassica Protection Products and Johns Hopkins University against five commercial sprout producers has "ended" with a verdict in favor of the sprout producers.
Five sprout companies and one seed company were sued by BPP and JHU for infringing on three patents by producing broccoli sprouts that are particularly high in biochemicals that prevent cancer. Those companies included Banner Mountain (CA), Edrich Farms (MD), Harmony Farms (WA) and Sunrise Farms (WI). It also included ISS for selling seed, and ISS's sprouting division, Sungarden Sprouts for selling sprouts.
In a summary judgment, the Honorable Judge William M. Nickerson of the US District Court of Maryland ruled that all three of the broccoli sprout patents are invalid.
The growers presented the question to the court "Can a plant (broccoli sprouts), long well known in nature and cultivated and eaten by humans for decades, be patented merely on the basis of recent realization that the plant has always had some heretofore unknown but naturally occurring beneficial feature?". The court answered the question with a definitive "no".
Summary judgment is rarely issued by a court. Patents enjoy a presumption of validity which can only be overcome by clear and convincing evidence. In order for the growers to get a summary judgment they needed to submit such clear and convincing evidence of invalidity so as "no reasonable finder of fact could conclude otherwise".
If there were any doubt about any issues of fact, the court would need to rule in favor of Brassica. In this case, the growers presented such a clear and concise representation of the facts that the court determined them to be indisputable.
The patents were written in such a confusing, convoluted way that it took this defendant 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 golden patents were actually painted bricks.
In his court brief accompanying the ruling, Judge Nickerson, wrote, "The facts relevant to the construction and the validity of the Plaintiffs' patent claims are fairly uncomplicated and largely undisputed. 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."
He continued, "In construing the claims at issue here, the Court finds that they describe nothing more than germinating sprouts from certain cruciferous seeds and harvesting those sprouts as a food product"...Phrases in the claims such as, "rich in glucosinolates," or "containing high Phase 2 enzyme potential and non-toxic levels of indole glucosinolates and their breakdown products and goitrogenic hydroxybutenyl glucosinolates," simply describe the inherent properties of certain cruciferous seeds...
Plaintiffs attempted ... to argue that the claim language, "identifying seeds which produce cruciferous sprouts . . . containing [the desired properties]" introduces a new "selection" step that was not a part of the prior art. All this step entails, however, is choosing to do something over another, in this case, choosing to grow broccoli instead of cauliflower sprouts instead of cabbage, cress, mustard or radish sprouts. Any process could be prefaced by a similar "selection" step. Certainly, that one first chooses to perform a particular process cannot be enough to make the process "New"...Thus, the Court finds that the patents-in suit are invalid by anticipation.
Brassica has until August 24 to decide if they wish to appeal the ruling.
2002 and Beyond
BPP did appeal and lost. Broccoli sprouts are now grown by sprout people all over the world. The seed supply was way below the demand until early 2004. The seed is still much more expensive than most seeds and there is virtually no organic seed available, but at least it is no longer illegal to sprout broccoli.
We are proud to say that we were sprouting broccoli within one week of the September, 1997 announcement, and we NEVER stopped! We refused to be impressed by that rude and agressive tactics of BPP and their absurd and hateful patent. For all of us who risked legal action and especially to those who were sued and fought back I have these words: Eat More Broccoli.
* The statements on this page are true to the best of our knowledge, but are - if push comes to shove - nothing more than our opinions.
Get back to Sproutpeople's Sprout Politics page