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Strawberry patent infringement case turns sour for Driscoll’s

A third crack failed to produce fruit for the berry giant, which claims its proprietary strains of strawberries were surreptitiously used to make new varieties.

SACRAMENTO, Calif. (CN) — Parts of a strawberry patent infringement lawsuit against the former chief of a legendary breeding institute haven't borne fruit and are on their last runners, a federal judge ruled.

The case stems from an underlying dispute between University of California, Davis, and Douglas Shaw, in which a federal jury found Shaw stole plants to kickstart his strawberry startup. Shaw and another renowned UC Davis researcher started California Berry Cultivars and began producing varieties without the university’s consent.

UC Davis responded with a conversion and patent infringement suit and the jury eventually found Shaw infringed on nine strawberry patents. Under a settlement, Shaw agreed to return certain plants and seeds and allow UC Davis to test future varieties for university-owned DNA.

Now Driscoll’s says it too was a victim of theft, pointing to witness testimony and exhibits from the trial that it contends prove Shaw used at least four of its patented varieties at his California Berry Cultivars lab. The company claims the four strains — Camarillo, Amesti, Lusa and Marquis — were in fact developed at its Central Valley lab and that Shaw used the strains to crossbreed a competing brand of strawberries.    

Driscoll's sued Shaw and California Berry Cultivars in 2019. Its case withered in July 2021 after U.S. District Judge Troy Nunley picked apart the patent infringement lawsuit and let just one claim for declaratory relief survive, casting Driscoll’s complaint as vague.

Responding to Driscoll's second amended complaint, the defendants argued Driscoll’s does not adequately allege multiple elements of its intentional interference with a contract claim or identify a valid contract They say Driscoll’s identified a “pool of at least five (and potentially more) alleged agreements” by naming nurseries and growers, but does not identify "the actual contract or contracts allegedly interfered with within that pool.”

On Thursday, Nunley — a Barak Obama appointee — agreed and dismissed two claims out of Driscoll's six.

In his 10-page order, Nunley found Driscoll's has not sufficiently fixed issues with two claims in its original and amended complaints, failing to state which contracts were at issue and how there was an actual breach or disruption of the relationship. 

“While Driscoll’s has specified the eight nurseries that propagate, and the 54 growers that receive Amesti, Lusa, and Marquis, it still fails to allege the existence of a specific contract or contracts serving as the basis for its allegations,” he wrote.

“Driscoll’s fails to allege any acts defendants undertook to induce any of the 62 nurseries or growers to breach their contracts with Driscoll’s. While defendants’ possession is certainly in contravention of any exclusivity contract Driscoll’s has with their nurseries and growers, it alone does not demonstrate an act of intentional interference with their contracts.”

Nunley said because Driscoll’s failed to show an actual breach or disruption of the contractual relationship, the company cannot seek damages. But he gave the company one last shot at making its case on those two claims.

“While the court has doubts as to Driscoll’s ability to plead a viable tortious interference with a contract claim, the court will give the plaintiff a final opportunity to amend,” Nunley wrote. “The court, however, cautions Driscoll’s that any amended complaint must adequately address the deficiencies set forth above.”

Driscoll’s has 30 days to file a third amended complaint, and the defendants have 21 days after that to respond. Attorneys for the defendants did not respond to requests for comment by press time.

“We look forward to proving in court that CBC’s unauthorized use of Driscoll’s varieties in its breeding program infringed our patents,” said Tom O’Brien, Driscoll’s general counsel.

The legal fights over strawberry breeding come as the fruit continues to be a major cash crop in the Golden State, which produces an estimated 90% of the nation’s total strawberry crop. The University of California owns over half of all patented varieties

Driscoll’s patented the first strawberry variety in 1958 and continues to produce new strains through its private plant breeding companies, licensing independent growers in places like Oxnard, Santa Maria, Salinas and Central Mexico to use their intellectual property.

Categories: Business Courts Science

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