Canada takes nursery to court over cherry trees
Canada’s Department of Agriculture and Agri-Food (AAFC) has accused a Washington-based nursery, a fruit seller, and a fruit grower of infringing a plant patent covering the Staccato type of cherry tree.
The Canadian government, in a lawsuit filed at the US District Court for the Eastern District of Washington on Monday, May 18, claimed that Van Well Nursery and Monson Fruit Company are selling the patent-protected cherry trees and fruit.
Under a Canadian government-funded tree fruit breeding programme, Canadian breeder W David Lane bred a new sweet cherry tree, which the AAFC patented as a new variety and called it Staccato.
Van Well allegedly came into possession of the Staccato variety when AAFC provided the nursery with it for testing and evaluation.
Some years later, Van Well entered into an agreement with AAFC’s commercialisation licensee Summerland Varieties Corporation (SVC), to propagate, market and sell a different cherry tree variety, called Sonata.
This is where Gordon Goodwin, a sweet cherry grower, comes in. Van Well allegedly delivered Sonata trees to Goodwin and, without authorisation, also delivered a Staccato tree.
When Goodwin noticed that one of the trees was different, he filed for a US patent, called “Sweet Cherry Tree Named ‘Goodwin’” and commercially called it Glory, according to the claim. Goodwin was granted a US plant patent for Glory in 2012, which he subsequently assigned to Van Well.
Two years later, SVC demanded Van Well stop marketing and selling Glory. Settling the dispute, Van Well allegedly agreed not to sell Glory, to sell to SVC whatever Glory trees Van Well had in its possession, to destroy the Glory trees and to terminate its agreement with Goodwin.
“However, in approximately October of 2017, SVC learned Van Well reneged on its agreement with SVC by resuming its propagation of Glory trees for sale of the trees in 2018 and 2019,” said the suit, adding that it subsequently “repeatedly demanded” that Van Well not propagate or sell any Glory trees.
In March 2018, AAFC formally notified Van Well it didn’t have permission to propagate or sell Glory.
The AAFC also claimed that it warned Monson not to accept delivery of any Glory trees, but Monson ignored the AAFC’s warning and planted the trees.
“Despite unambiguous demands from AAFC and SVC in 2018 to Van Well not to propagate and sell Glory trees and for Monson not to accept the trees, on information and belief, defendant Van Well has sold thousands of Glory trees to defendant Monson so that defendant Monson could plant the trees and sell their fruit,” added AAFC.
Now, the AAFC has claimed that the infringement is “flagrant and wilful” and is seeking injunctive relief, an order for the defendants to remove and destroy all Glory and unauthorized Staccato trees, cuttings, budwood and fruit, and an order directing the US Patent and Trademark Office to correct inventorship of the Glory patent.
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