Legal Development Updates

In Re: Cruciferous Sprout Patent Litigation

The plaintiffs in this case, Johns Hopkins University and Brassica Protection Products LLC, are holders of three patents involving the production and consumption of the sprouts of certain types of cruciferous seeds such as broccoli and cauliflower. Upon discovering that these sprouts contain high levels of cancer-fighting substances when harvested and consumed at a specific stage in growth, the plaintiffs secured three patents involving the method and process of identifying, germinating, and harvesting the sprouts of certain cruciferous seeds. In the case at hand, the plaintiffs brought suit against the defendants in the U.S. District Court for the District of Maryland, alleging: 1) the defendant broccoli sprout growers infringed plaintiffs' patents by producing and selling broccoli sprouts without being licensed by plaintiffs; and 2) the defendant seed seller contributed to the infringement of the patents by selling seeds to sprout growers.

The defendants moved for summary judgment that the patents at issue are invalid because they "merely [describe] unexpected beneficial results of a known process." The federal district court granted defendant's motion for summary judgment, noting that the plaintiffs did not dispute that the prior art reveals that cruciferous sprouts can be germinated, harvested, and eaten in the sprout stage. Nor did they claim that their patents involve the alteration or modification of the natural seeds.

Although it is clear that the plaintiffs discovered a "new and significant" property of certain types of cruciferous sprouts, i.e., high levels of cancer-fighting substances, the court stated that, under the concept of inherency, "[t]he discovery of a previously unappreciated property of a prior art composition ... does not render the old composition patentably new to the discoverer." Concluding that the plaintiffs' patent claims merely "describe the inherent properties of cruciferous seeds," the district court held that the plaintiffs' patents were anticipated by the prior art and, thus, invalid under federal patent law.

This decision is currently on appeal before the U.S. Court of Appeals for the Federal Circuit.