The stage is set for Canada to pursue damages from US growers for unlicensed production of Stacatto cherries.
On March 12, the US District Court for the Eastern District of Washington reinstated patent protection for Stacatto, a late-season variety developed by Agriculture and Agri-Food Canada (AAFC) and managed by Summerland Varieties Corp. (SVC).
The patent was previously ruled invalid over claims that Stacatto trees were sold prior to patent protection being in place, thereby invalidating the patent.
However, the documentation supporting the claim excluded 10 rows of data which were later found to be sales of Sonata trees and not Staccato. Together with other evidence, the court felt the misrepresentation of sales data were grounds for reinstating patent protection for Stacatto.
The Canadian government can now claim patent infringement.
“This brings the patent back into the conversation, something we didn’t think we were going to be able to leverage,” says SVC general manager Sean Beirnes. “The government is going into this trial with as much artillery as you could possibly have.”
The prime target for Canada is Glory, a cherry variety the US court determined last year to be actually Stacatto rather than a mutation of Sonata.
AAFC plans to pursue claims against Van Well Nursery, grower Gordon Goodwin and packinghouse Monson Fruit Co. for conversion, the unlawful possession and use of Staccato plant material for their own purposes. They also face claims for false advertising and business interference.
The next stage of the court proceedings will see AAFC seek monetary damages relating to the infringement of the Staccato patent and trademark; the return of all rights and interest in the Glory trees Van Well and Goodwin possess; and an order requiring that AAFC breeder W. David Lane be named as the sole inventor of Glory.
“We are pleased that we can now properly enforce a valid patent,” Beirnes says. “The global tree fruit industry is built on trust. It is critically important that industry stakeholders respect intellectual property rights associated with protected varieties. SVC will have zero tolerance for those who cheat.”
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