Simply the pits – long running plant patent case judge issues surprise reversal in US court victory for Canada

Agriculture and Agri-Food Canada, a department of the Canadian government, has scored a  major victory in defending its rights to the Staccato cherry variety in court in Washington state in a case which has been rumbling on for around five years.

On March 12 2025, Judge Stanley Bastian of the U.S. District Court for the Eastern District of Washington reversed a previous order he had made invalidating an AAFC plant patent covering the Staccato cherry breed.

He had granted the patent revocation order on the grounds that Washington farmer Gordon Goodwin, one of three defendants in the case, had submitted a spreadsheet supposedly proving that he and other defendants had been selling Staccato for more than a year before AAFC filed for a patent in the US. Under US IP law, selling a product invalidates future applications for patents.

But Judge Bastian has now ruled that the spreadsheet he had accepted as evidence had been doctored, and that the sales shown were for a completely different cherry variety.

According to an article on the Canadian Broadcasting Corporation (CBC) website, Judge Bastian said: “It is undisputed that the defendants excluded the first ten rows of [the spreadsheet] that stated the sales were actually of Sonata, an entirely different cherry, then falsely represented to the court that [the spreadsheet] was an accurate copy of the original spreadsheet,” Bastian said. “It would be manifestly unjust to excuse this behaviour at this stage of the proceedings.”

The AAFC had alleged that Mr Goodwin’s patented Glory cherry was in fact Staccato. That claim was proven in court last year. through genetic testing.

The Staccato cherry was discovered at the AAFC’s Summerland Research and Development Centre (now known as the Pacific Agri-Food Research Centre) in 1982. It ripens in late August, long after other cherry varieties, giving its grower’s a competitive advantage. It has become very popular with British Columbian growers.

AAFC’s case alleges that Mr Goodwin’s co-defendants, Washington state fruit tree supplier Van Well Nursery Inc. and the Monson Fruit Company grew, packed and sold Staccato cherries as Glory cherries.

Monson has already filed a motion asking the judge to reconsider his latest decision. A lawyer for Monson says that the company has relied on the revocation of the Staccato cherry patent in the US for the past two years to build its defence, and that they had agreed to a bench trial (where the judge decides on the evidence) rather than opting for a jury trial on the basis that that the patent was invalid.

In America, plant patents were established in 1930 under the Federal Plant Patent Act. They exist in tandem with what are known as Plant Breeders’ Rights or Plant Varietal Rights, which were established by an Geneva-based international organisation  Union Internationale pour la Protection des Obtentions Végétales (UPOV) which developed an international treaty, the International Convention for the Protection of New Varieties of Plants (UPOV Convention). Countries which sign up to the UPOV Convention agree to provide IP protection for breeders of new plant varieties. Members of the World Trade Organisation (WTO) are similarly required to give plant breeders intellectual property rights over new varieties.

Summerland Varieties Corp. (“SVC”), a BC based company which manages, defends and monetises the intellectual property rights of fruit breeders, is the global master license for Staccato cherries. General manager, Sean Beirnes, told fruit industry media that SVC is “very pleased to manage the license for a valid patent that can now be properly enforced… It is critically important that industry stakeholders respect intellectual property rights associated with protected varieties. SVC will have zero tolerance for those who cheat.”