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To the defendants involved in the broccoli sprout patent litigation, it may have seemed a lifetime, but last Friday, they heard the best news in a long time. Their attorney had probably just informed them that Judge Nickerson of the US District Court for the District of Maryland (John Hopkins' home court) has just ruled that the broccoli sprout patent is INVALID!

Brassica Protection Products LLC and Johns Hopkins University initiated a patent infringement action against five sprout growers and one seed company in September 2000. Complaints were filed and served on Banner Mountain Sprouts (California), Edrich Farms (Maryland), Harmony Farms (Washington), Sunrise Farms (Wisconsin), and International Specialty Supply, dba SunGarden Sprouts (Tennessee). Brassica succeeded in having all these lawsuits consolidated for pre-trial purposes in the US District Court for the District of Maryland, which happens to be the State where Brassica and Johns Hopkins University are located.

On July 23, 2001, shortly after the ISGA Nashville convention, the Court heard arguments on Defendants' Motion for Summary Judgment. A Motion for Summary Judgment is a motion filed by a party to a lawsuit arguing that based on the record before the Court, no genuine issue exists as to any material fact, and that the moving party is entitled to judgment as a matter of law. A genuine issue exists if the evidence is such that a reasonable jury could find for the nonmoving party. A ruling in favor of the moving party is very drastic. You are essentially taking away a party's right to a trial. For this reason, summary judgment motions are rarely granted.

Under the patent statutes, a patent enjoys a presumption of validity, which can be overcome only through clear and convincing evidence. Thus the moving party seeking to invalidate a patent at summary judgment must submit such clear and convincing evidence of invalidity so that no reasonable finder of fact could conclude otherwise. In determining whether a genuine issue of material fact exists, the court views the evidence in the light most favorable to the nonmoving party and resolves all doubts in its favor.

The primary issue presented to the Court, "succinctly" articulated by defense counsel: "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 a recent realization that the plant has always had some heretofore unknown but naturally occurring beneficial feature?" The Court finds that the answer to that question must be "no."

The Court goes on to state that "the facts relevant to the construction and validity of 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."

The Court goes on to further state "defendants...do not dispute that Fahey and Talalay discovered a new and significant property of certain types of cruciferous sprouts, i.e., that these sprouts contain high levels of substances that aid the human body in preventing cancer. Defendants do not challenge that Fahey and Talalay also discovered that certain cruciferous sprouts, such as broccoli and cauliflower, contain much higher levels of these substances than other cruciferous seeds. Instead, Defendants contend, and the Court agrees, that merely describing unexpected beneficial results of a known process does not entitle Plaintiffs to patent that process."

To all the Defendants and their attorneys, the ISGA congratulates you on a job well done. Depending on whether Brassica is successful on appeal, sprout growers now have a right to grow whatever sprouts they want to grow, including broccoli sprouts. This patent issue has been very divisive to the industry. With this ruling, we can only hope to mend fences with Brassica growers, and move on with more important issues of food safety and marketing.

The efforts by all the Defendants have benefited the entire sprouting industry. By losing the exclusivity of broccoli sprouts, Brassica no longer has that marketing leverage over other sprout growers. If consumers want broccoli sprouts, all growers are now free to provide this product. For the Defendants, however, they are not completely "out of the woods." Legal fees that have accumulated over the past year by any one of the defendants could put any one of us out of business. If you have been waiting for a more definitive result, you now have the result you have been waiting for. Please help these defendants get on with their lives by contributing to the ISGA Right to Grow Sprouts Fund. Whether it is one lump sum, or smaller monthly contributions, your help is badly needed. Send your check to ISGA, PO Box 2214, Amherst, MA 01004-2214, USA. Indicate that it is for the ISGA Right to Grow Sprouts Fund.

Again, congratulations to Frank & Becky Crikelair, Greg & Lorna Lynn, Larry Ravitz, Bob & Kathy Rust, and Edward Sr., Edward Jr., Richard & Sally Stanfield for a wonderful success.

Jay Louie, ISGA President

Click here to read the full text of Judge Nickerson's Memorandum on the Summary Judgment Motion.
 

The US Food and Drug Administration has inspected 140 sprout growers to monitor and enforce compliance with Guidances developed to enhance the safety of sprouts. The great majority of growers have been complying with the FDA Guidances. Problems with compliance with spent water testing were cited primarily among mung bean sprout companies. However, no adulterated sprouts were found.

In a meeting with FDA representatives, Jay Louie, Acting President of the ISGA, pointed out that the Guidance does not have adequate protocols for the sampling and collection of spent bean sprout water since cultivation practices are substantially different for bean sprouts than for green sprouts. The FDA will be addressing this problem in the coming year. We will keep you posted.

If you have any questions about the guidances or about sanitary practices contact Barbara Sanderson. (See details on Guidances below.)
 

On October 25, 1999 the Food and Drug Administration issued two guidance documents to enhance the safety of sprouts. The first guide, entitled "Microbial Food Safety Hazards for Sprouted Seeds", advises sprout producers and seed suppliers of steps they should take to reduce microbial hazards common to sprout production. The second guide, entitled "Guidance for Industry: Sampling and Microbial Testing of Spent Irrigation Water During Sprout Production", provides producers with the latest information about testing spent irrigation water. Both of these documents apply to all types of sprouts.

The FDA guidance recommends seed disinfection (with solutions such as calcium hypochlorite) combined with microbial testing of used irrigation water from each batch or production lot to determine if Salmonella and E. Coli 0157:H7 are present.

The FDA states that they "will closely monitor the safety of sprouts and the adoption of prevention practices recommended in the guidance, and will consider enforcement actions against producers who do not have preventive controls in place."

Click here to transfer to a copy of "FDA/CFSAN Guidance For Industry-Reducing Microbial Food Safety Hazards for Sprouted Seeds".
Click here to transfer to a copy of "FDA/CFSAN Guidance For Industry - Sampling And Microbial Testing Of Spent Irrigation Water During Sprout Production".