University Sues Professor’s Company for Fruit Cultivar Patent Infringement

Washington State University (WSU) has filed a lawsuit alleging Phytelligence Inc., a WSU horticulture professor’s company, sold an apple cultivar to a third party, breaching a propagation contract and infringing the university’s patent. Wash. State Univ. v. Phytelligence Inc., No. 18-0361 (W.D. Wash., filed March 8, 2018). WSU allegedly agreed to allow Phytelligence, which aims to commercialize technology for soilless tissue cultures and ripening chemistries, to propagate the cultivar that produces the Cosmic Crisp apple, WA 38. The complaint alleges that although the contract forbade Phytelligence from transferring or selling the cultivar, the company has sold WA 38 trees to at least one grower. The complaint also asserts that after the cultivar was patented, WSU allowed a nonprofit association to grant licenses for propagation and sale of the trees; Phytelligence allegedly inquired about obtaining a licence but did not apply for one. In addition, Phytelligence previously filed a lawsuit against WSU claiming breach of the propagation contract on the grounds that it was unable to obtain a commercial license, and the university counterclaimed for breach of contract and trademark infringement.