There has been a major twist in a years-long legal battle that has pitted the Canadian government against a U.S. cherry farmer.
This month, the District Court for the Eastern District of Washington reinstated a patent for the Staccato cherry variety developed by Agriculture and Agri-Food Canada’s (AAFC) program in Summerland, B.C.
The victory means AAFC has the legal grounds to argue that an American farmer has been passing off the Canadian cherries as his own, in violation of the patent.
“This is not a decision that comes out very often and certainly not with the level of commercial impact that it has,” said intellectual property lawyer Elizabeth Dipchand, who is not involved in the case.
AAFC told CBC News it’s pleased with the court’s decision.
“AAFC remains committed to safeguarding the integrity of its plant varieties and ensuring fair recognition of its research and development efforts in the global fruit industry,” it said in a statement.
Summerland Varieties Corporation, which commercializes the Staccato variety for the federal government, has also applauded the decision.
“The global tree fruit industry is built on trust. It is critically important that industry stakeholders respect intellectual property rights associated with protected varieties. SVC will have zero tolerance for those who cheat,” said SVC General Manager Sean Beirnes.
Staccato vs. Glory
The Staccato cherry was discovered by AAFC breeder W. David Lane in 1982 at the Summerland Research and Development Centre.
One of the Staccato’s most distinctive features is its late maturity. It ripens in early August, weeks after other cherry varieties, giving growers a financial advantage because they don’t have to compete with as many competing cherry brands.
The cherries have been one of the most widely planted varieties in the last 10 to 15 years, according to B.C. Cherry Association President Sukhpaul Bal.
“Washington state is 10 times the size of our industry. So we have to look for any advantage that we can get and these later cherries are definitely the key advantage,” he told CBC News.
A U.S. judge has reinstated a patent for a B.C.-bred cherry variety. Intellectual property lawyer Elizabeth Dipchand says the decision allows Canada to go after fruit growers who are selling the same cherry.
For about five years, the federal government has been involved in a lawsuit against Wenatchee, Wash., farmer Gordon Goodwin, alleging that his patented Glory cherries are actually Staccato cherries.
AAFC alleges that Van Well Nursery Inc., a Washington fruit tree supplier, improperly gave Goodwin a Staccato tree and that the Monson Fruit Company then grew, packed and sold those cherries as Glory cherries.
‘Misleading, deceptive’
AAFC said the defendants’ “misleading, deceptive and false use” of “Glory” in its advertising deprives “AAFC of the “value and goodwill that otherwise would stem from public knowledge of the true source of the product.”
AAFC said it gave Van Well Staccato trees for testing and evaluation but that their agreement prohibited Van Well from distributing or selling the cherry variety.
Years later, the lawsuit alleges, Van Well entered into an agreement with Summerland Varieties Corporation to sell a different cherry variety — Sonata.
Goodwin then bought Sonata trees and when he noticed that one of them was different, he filed for a U.S. patent and was granted it in 2012, commercially calling the cherries Glory cherries, the lawsuit said.
The lawsuit alleges that Monson Fruit Company obtained budwood from Goodwin to propagate hundreds of acres of Glory trees and that Van Well has sold thousands of Glory trees to Monson over the years.
In 2024, a judge with the District Court for the Eastern District of Washington sided with AAFC, ruling that the Glory cherry was identical to the Staccato following genetic analysis.
But the same judge, Stanley Bastian, previously invalidated the Canadian government’s patent for Staccato cherries because the agency had filed for the patent after the cherry had been sold commercially by Goodwin and the other defendants for more than a year.
This month though, Bastian said the court made a “clear error,” overturning his decision and reinstating the patent in light of a new spreadsheet.
The defendants had submitted a spreadsheet of their cherry sales, showing that they had sold Staccato cherries before the federal government’s patent had been filed. But the judge found the first 10 rows of the spreadsheet were excluded. They showed that another type of cherry was being sold.
“It is undisputed that the defendants excluded the first ten rows of [a 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.”
‘We were shocked’
Lawyer Mark Walters, who’s representing Monson in the suit, told CBC News Bastian’s earlier decision was the cornerstone of the legal team’s argument in this case.
“We were shocked,” Walters said in an interview. “We relied for two years on this.”
He said the defendants waived their rights to a jury trial because of the judge’s decision to invalidate the patent.
“We would never have agreed to a bench trial … had the summary judgment not been in place at that point,” Walters said.
On Friday, Monson filed a motion for the judge to reconsider his decision.
“Vacating that ruling now—after Defendants irrevocably waived jury rights and structured their defense around the finality of summary judgment—works a manifest injustice,” the motion said.
Van Well and Goodwin did not respond to CBC News’ requests for comment.
