Judge rules against J.P. Dulcich & Sons in grape case

A federal court has ruled against a California grape grower-shipper in a lawsuit concerning who invented the Green Emerald table grapes.

On July 17, the U.S. Patent and Trademark Office's Patent Trial and Appeal Board ruled for the plaintiff, Fresno, Calif.-based Sheehan Genetics LLC, the breeder of the Great Green variety, against McFarland, Calif.'s J.P. Dulcich & Sons LLC, which markets its grapes through Sunlight International Sales.

Sheehan contended Dulcich's Green Emerald variety was the same as its Great Green.

Dulcich's attorneys conceded the grapevine originated from Sheehan's genetics but argued the variety was "patently distinct," or not the same as or obvious in view of Sheehan's grapevine, according to the board's ruling.

Dulcich argued its grapevine yields berries that are larger, crisper in texture and lack a noticeable seed trace, according court papers.

Two experts, a Cornell University horticultural professor and a University of California viticulture farm advisor, argued for Dulcich and Sheehan, respectively, in the proceedings.

The administrative patent judges concluded the analysis from Dulcich's expert did not sufficiently show their variety as being different from Sheehan's grapevine.

"In this important decision from the Patent Trial and Appeal Board… the U.S. Patent Office brought confidence back to the table grape industry, affirming that a grower cannot take another's grape and use growing practices to claim it as its own," Sheehan's attorneys stated in an article they wrote on an intellectual property law website.

The board authorized Dulcich to file a motion for judgment that Sheehan's claim is unpatentable on the basis that the claimed invention was in public use or on sale in the U.S. more than one year prior to the date of Sheehan's application for patent.

Sheehan started developing the Great Green variety in 1999 and later provided seed to nurseries, according to the 2014 complaint.

In 2004, Sheehan provided budwood from a mother vine of the Great Green variety to Dulcich, according to the complaint.

Dulcich used the budwood to graft vines and in 2012, applied for its own patent.

Dulcich officials didn't return calls from The Packer for comment.