Defendants in a cherry tree patent lawsuit asked the Eastern District of Washington on Thursday for permission to amend their answer to add allegations which they reportedly found through further investigation into the patent, which would purportedly render the patent and enforcement of it invalid.
They claimed that the plaintiffs “withheld material information” from the United States Patent and Trademark Office, specifically information about whether the tree was available publicly prior to the patent application and information about the first sale of the Staccato cherry tree variety.
The motion alleged, “instead of disclosing what they knew about Staccato, i.e., that it had been widely used and sold within the United States at least as early as 2000, and that it had been described in printed publications as early as 1999 and 2000, (the plaintiff and other entities) withheld this information because they understood disclosure would eliminate any chance at patent protection.”
The defendants include Vann Well Nursery Inc., Monson Fruit Company Inc., and Gordon and Sally Goodwin. They were accused by Canada and its Minister of Agriculture and Agri-Food (AAFC) of infringing on U.S. Patent No. PP250,551 for the Staccato sweet cherry tree in May 2020. The tree is reportedly unique because its cherries mature later in the season allowing a longer harvest time. The plaintiffs claimed that the defendants were producing the same tree under the name Glory.
In January, the court denied the defendants’ attempts to dismiss the lawsuit based on failure to join a party, specifically the Canadian company which provided the Staccato Tree license to AAFC, Summerland Varieties Corporation (SVC). Although they are not currently a party, the defendants included SVC in its allegations that the plaintiff knew Canadian growers would have a disadvantage without patent protection for the Staccato tree, and thus breached laws to get the patent. The defendants alleged that AAFC and SVC are attempting to reduce competition by enforcing the copyright and “ensuring that the only sweet cherries sold into the late-harvest market are owned or controlled” by them.
The defendants claimed that the facts they alleged in the motion were discovered recently and support additional claims against the plaintiffs of invalidity, unenforceability, and unlawful restraint of trade. The motion is scheduled for consideration at a hearing on April 20, 2021.
The plaintiff, Her Majesty the Queen in Right of Canada, as represented by the Minister of Agriculture and Agri-Food, is represented by Dentons US LLP and Paine Hamblen. Van Well Nursery is represented by Feltman Ewing P.S. and Tbillick Law PLLC. Sally and Gordon Goodwin are represented by Davis Arneil Law Firm, LLP and Tbillick Law PLLC. Monson Fruit is represented by Lowe Graham Jones.
