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Sour Grapes DJ?
USSC Says Go For It

Welcome to the AmiCOUR IP Blog.  We invite your comments.  Past Issues.

November 27, 2012  - By refusing to hear the case, the Supreme Court has permitted a declaratory judgment suit against the United States Department of Agriculture an the California Table Grape Commission to proceed. Like aged wine, the dispute between California growers of table grapes and the administrative agency's "Agricultural Research Service" set down its roots years ago when the Department patented three varieties of table grapes. The first sign of trouble appeared to be exclusively licensing each patent to a selected nursery based on a 60/40 split, with the majority of revenue going back to the government.

In 2004, things began turning sour when the first notices arrived demanding that growers and shippers pay a $2 fee per vine along with another $2 per box of patented grapes known as the "Sweet Scarlet" variety. The letter promised suit if they refused to pay up, but an embarrassing number of growers, 17 to be exact, responded by revealing how they legally obtained and cultivated the now infamous variety over a full year prior to the filing date of its apparently invalid patent. The rights to Sweet Scarlet were soon poured into the public domain, and the inventor and patent owner never tasted the consequences possible from the inequitable conduct inference.

Unpersuaded by the suspicious donation of rights and facing two more slowly fermenting infringement threats, growers filed a declaratory judgment to permanently prune the Department's appetite for litigation and affirm their freedom to grow. The Department claimed sovereign immunity and won in district court, but an appeals court disagreed with the lower court, citing the Administrative Procedures Act. The Department then filed cert in a final effort to rain on the proceedings. Cert was denied and the case is now ripe to proceed. The table grape (and raison) growers are officially entitled to have their day in the sunshine of a California courtroom. Stay tuned.