Last week, a group of fruit tree companies and their owners sought summary judgment in their favor in a cherry tree patent lawsuit filed against them by the Canadian government. In their motion, which will be considered in a hearing on September 30, Van Well Nursery Inc., Monsoon Fruit Company Inc., and Gordon and Sally Goodwin argued that the plaintiff, Her Majesty the Queen in Right of Canada as Represented by the Minister of Agriculture and Agri-Food, does not have a valid patent for the Staccato cherry tree.
The initial complaint, filed by Canada in May 2020, claimed that the two fruit tree companies and Gordon Goodwin patented and sold a cherry tree called the Glory Tree which was identical to and came from the Staccato tree patented by Canada. The tree is unique because its sweet cherries mature later allowing for an extended harvest. The plaintiff sought destruction and removal of the defendant’s trees, injunctive relief, and damages.
Earlier this year, the Eastern District of Washington ruled against dismissing the case, disagreeing with the defendants’ claims that Summerland Varieties Corporation which developed the Staccato Tree should be joined as a plaintiff and that Canada did not have standing. The defendants also claimed in March that the plaintiff did not disclose that the tree had previously been widely sold in the U.S. when applying for a U.S. patent for their Staccato Tree.
In the present motion for summary judgment, the defendants reiterated its allegations, and claimed that there is evidence showing “over 9,200 Staccato trees on sale more than one year before the earliest priority date claimed” by Canada’s patent. It was reportedly sold by three separate nurseries, and Canada was aware of the sales.
The motion predicted that the plaintiff will likely claim that the tree was not ready to be patented previously but was still being tested, but the defendants claimed that there is no documentation of experimentation to support this claim and the sales were commercial. The defendants asked the court to rule that the patent for the Staccato tree is invalid, that there are “no genuine issues of material fact” to dispute, and that the defendants should be awarded summary judgment.
The plaintiff is represented by Dentons US and Paine Hamblen. Van Well Nursery and Sally and Gordon Goodwin are represented by Davis Arneil Law Firm, Feltman Ewing P.S., and Tbillick Law. Monsoon Fruit Co is represented by Lowe Graham Jones.
