The Federal Circuit Court of Appeals has affirmed a lower court’s ruling that unauthorized public use of the Scarlet Royal and Autumn King varieties of table grapes does not invalidate the U.S. Department of Agriculture’s (USDA’s) patents on them. Delano Farms Co. v. Cal. Table Grape Comm’n., No. 2014-1030 (Fed. Cir., order entered January 9, 2015).

The appellants, three farming companies, had challenged the patents on the grounds that they were in public use for more than a year before the date of the patent applications. According to the facts determined by a lower court’s bench trial, the mature fruit of grape varieties were exhibited at an experimental variety open house in 2001 at California State University, Fresno. Without authorization, a USDA employee gave a grape grower the plant materials for the unreleased varieties, and that grower in turn gave the materials to his brother and cousin in addition to planting and growing Scarlet Royal and Autumn King himself. The growers later sold the grapes under a different name, but the court noted that those sales occurred less than one year before the filing of the patent applications. The court refused to find that the unauthorized use of the plant varieties constituted a public use that would invalidate the patent, so it affirmed the lower court’s finding that the patents were valid.


Issue 551

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.