Patenting Food -- And Controlling Access To Food

Today's new patent opinion from the Federal Circuit reminds us that:

1. Food can be patented;

2. New food plants developed with public monies by the USDA does not necessarily benefit all US citizens equally; and

3. Wrongful disclosure by an inventor's employee of confidential information concerning a newly discovery invention does not necessarily start the one year on-sale bar ticking.

In Delano Farms v. California Table Grape Commission, plaintiffs sought to invalidate a USDA patent on new varieties of table grapes: the Scarlet Royal and the Autumn King.

Scarlett Royal           Autumn King

Plaintiffs asserted that the new grape varieties were in public use more than one year prior to the filing of the patent application. These new grape varieties were developed by the USDA, a government agency spending public monies. The USDA obtained a patent on the new grapes and then granted an exclusive license to the California Table Grape Commission. The grape commission in turn sublicensed the new grape varieties to California growers for a license fee that was split between the grape commission and USDA.

An employee working for the USDA in the office that developed the grape varieties secretly gave plant material to friends, California grape growers. This occurred more than one year prior to the filing of the USDA's patent application. The employee knew that he was not authorized to provide the plant material outside of the USDA and so did his friends, the California growers.

Plaintiffs in this case were California grape growers who did not want to pay the patent fee to the grape commission. They sought to invalidate the patent in the hope of obtaining the patent benefits for free. The Federal Circuit easily disposed of plaintiffs' contention that public use occurred more than one year prior to the filing of the patent application. Since the transfer of the plant material occurred without the consent of the USDA and in violation of its employee's confidentiality obligations, and since the recipients of the plant material knew that the material was secret and should not have been disclosed, then the public use never commenced at the time of the wrongful disclosure.

While the holding of this case is pretty straight forward, it nonetheless reminds us that:

1. It is critical for an inventor to maintain secrecy over the invention, and to liberally use confidentiality and nondisclosure agreements with those people who assist in the development of the invention.

2. Government agencies use public money to develop new food crops, but do not necessarily grant free use to the public of the very food that public money was used to develop.

3. Food can be patented, and use of food can thereby be restricted (here the USDA granted an exclusive license to the California grape commission but not to non-California growers!).