Canada Files Complaint Alleging Cherry Trees Violate Patent

A lawsuit was filed by the Canadian government against two fruit tree companies located in Washington state and Gordon Goodwin, a sweet cherry grower who patented the Glory Tree. The Glory Tree is allegedly the same sweet cherry variety that was previously patented by the Canadian government called Staccato. It claims the cherry tree patent infringement is “flagrant and willful.”

Her Majesty the Queen in Right as represented by the Canadian Minister of Agriculture and Agri-Food (AAFC) is the plaintiff in the case; the lawyer for the plaintiff is Paine Hamblen. The lawsuit was filed in the Washington Eastern District against Van Well Nursery Inc, Monson Fruit Company, Gordon Goodwin, and Sally Goodwin. The lawsuit asks for injunctive relief, including destruction and removal of the trees, and monetary damages.

The AAFC established a fruit breeding program in 1924, which allowed W. David Lane to breed a sweet cherry variety called Staccato, United States Patent No. PP 20,551 P3. This variety had a late fruit maturity which allows the grower a financial advantage from an extended cherry harvest season. The petition alleged that the defendants were aware of Staccato and its protection by a patent but they are still propagating, growing and selling “Glory” trees which are equivalent to Staccato trees.

The AAFC alleged that they provided Van Well Nursery with a Staccato tree for testing, but prohibited them from distributing or selling. They had an agreement to sell Sonata, a different AAFC bred variety of cherries, which was purchased by Goodwin. The complaint claimed that while delivering the Sonata trees to Goodwin, Van Well Nursery also delivered a Staccato tree. After noticing one tree was different, he filed for a U.S. patent for the tree he observed and called it Glory.

“Because the Glory patent claims the Staccato variety, AAFC breeder W. David Lane is the proper inventor of the variety and AAFC the owner of the “Glory” patent,” the complaint says.

AAFC’s commercialization licensee, Summerland Varieties Corporation (SVC), reached out demanding Van Well Nursery stop producing Glory trees, which Van Well Nursery confirmed they had done in 2015 but the complaint alleges the began propagation of Glory trees again in 2018. Van Well Nursery allegedly sold Glory trees to Monson Fruit Company, and it propagated hundreds of acres of 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,” the complaint alleged.