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Wednesday, September 22, 2021

UC Davis, former researchers face lawsuit over strawberry intellectual property

CAT TAYLOR / AGGIE

Former UC Davis researchers sue for right to use strawberries developed within their strawberry breeding program that has earned millions for UC

In a litigation battle over the ownership of strawberry research intellectual property and physical cultivars, a judge ruled in the University of California’s favor on May 15, referencing the contracts that all UC researchers sign to relinquish intellectual property and research conducted on-site when they conceive a new invention or technique.

California Berry Cultivars (CBC) initially filed a lawsuit against the UC Regents on May 3, 2016, charging UC Davis with keeping CBC founders Doug Shaw and Kirk Larson from taking possession of certain strawberry cultivars they had developed while at UC Davis. The university refused to allow them access to the plants, and Shaw and Larson saw this as “an apparent attempt to suppress competition.”

Shaw and Larson’s suit sought $45 million in damages for royalties they lost by not using the plants in their own business, as well as a license to use the plants. UC Davis countersued, accusing CBC of unauthorized use of certain plant varieties and breach of contract.

Shaw joined the UC Davis Department of Pomology in 1986, and Larson joined in 1991. Both headed the strawberry breeding program for over two decades until 2014, supplying two-thirds of the entire California strawberry market with their successful and high-yielding strawberry cultivars, or varieties. The duo claimed that they amassed over $100 million in royalties for the university from these patents, which the university owns. The partners retired in 2014 to pursue their own Watsonville and Orange County strawberry developing business, CBC.

On April 27, the week prior to the May 15 ruling, a judge decided that “summary judgment is granted to UC on its claim for breach of contract arising from Shaw and Larson’s failure to assign their rights to the Core Strawberry Germplasm,” granting UC’s claims to the physical plants and siding with the university in that regard. At that time, the university still did not control the intellectual property associated with the plants. This will be decided by jurors by the end of May.

However, many other private California strawberry farmers see value in the release of this commercial-bolstering strawberry research. They believe that the school is withholding profitable and successful strawberry varieties from commercial and private usage. 60 of these growers sent letters to the UC, provided to The Aggie by Russ Stanton, the communications manager for CBC, asking CBC to license the plants to Shaw and Larson. These 60 farmers assert that there is a beneficial public and private interest in access to these resilient strawberry strains.

Kimberly Hale, the interim director of strategic communications at UC Davis, voiced her approval of the UC’s decision to support a public UC Davis strawberry breeding program, keeping the fruits of the research out of private companies.

“We are pleased with the judge’s April 27 decision and look forward to the proceedings that began this week,” Hale said via email. “In the meantime, our strawberry breeding program remains hard at work in its partnership with California’s strawberry farmers to continue producing the best strawberries in the world.”

Kyle VandenLangenberg, a project director at CBC, disagrees with Hale, arguing that it is mutually beneficial for the CBC, UC Davis and other strawberry companies that patented cultivars be used as parent strains when breeding and growing strawberries privately.

“There are actual plants — the physical property — and then the intellectual property that goes along with those things,” VandenLangenberg said. “You can think of those in terms of ink versus the words in a book. Shaw and Larson provided a lot more than just intellectual property, such as agricultural research, and provided that information to the general public. That’s almost the standard, extension-style research. They also produced products that were sold to the strawberry industry. There are very large patents held by the University of California for those creations that create a significant amount of revenue for the University of California. These significantly improved the California strawberry industry, valued now at $2.5 billion. [Shaw and Larson’s] research and product creation has contributed quite a bit to the growth of that industry and the stability of that industry.”

VandenLangenberg also disentangled the confusing situation of patented genetic material and plants that are owned by UC Davis yet used as industry standards in comparison, troubleshooting and growth. He sees the UC’s perspective as sheltering and uncompetitive, potentially injuring the agricultural economy.

“The University of California has claimed that benchmarking is infringing,” VandenLangenberg said. “A benchmark in any scientific experiment is a control. In agricultural research, the control often is the pedigree product. They grow them alongside their products to learn something about their own products. It’s something that’s a very common practice in science. In medical studies, they use competitors’ products in experiments. The University of California has taken a position that really, to me, flies in the face of the contract of science. The court has chosen to agree with them — the issue in summary of judgment has come out that it is patent infringement. It becomes difficult for other plant breeders to do their work without being able to benchmark it against other correct standards. As the leading agricultural institute in the world, I think it’s a very interesting position that UC Davis has chosen to take on this particular matter.”

After explaining the legal predicament of agricultural research that dips itself in public, academic and private interests, VandenLangenberg explained that Shaw and Lawson’s work has contributed to the majority of strawberries grown in California. He also conveyed that the UC has bolstered the California strawberry industry on the backs of Shaw and Lawson.

“There are about 19,000 or 20,000 acres of strawberry grown in California that have a UC Davis cultivar on them that was created by Doug Shaw and Kirk Larson,” VandenLangenberg said. ”That is about two-thirds of the entire California market. The rest of the market — the other 10 or 11 thousand acres — are planted with what we call propertier varieties, or cultivars, like Driscoll’s Berries.”

About half of all California strawberry growers have sent letters of support for CBC’s right to license the products they created years ago, according to VandenLangenberg. Including custom letters of support from Sunrise growers, a large frozen fruit company, the growers’ letters demonstrated the capitalistic spirit that competition is good for agriculture and that they support a settlement to boost and encourage competition. To the CBC, this wide endorsement from California growers shows the desire of the industry to free up competitive strawberry varieties from closed laboratories.

 “The cultivars they’ve developed have been very heavily used by other companies around the world as parent material,” Vandenlangenberg said. “This is a very common practice in plant breeding, to use other people’s patent’s as parents. The CBC is trying to continue our legacy, and we haven’t taken any intellectual property from the University of California. We didn’t misappropriate any intellectual property from the university, just used patented strains as parents, which the entire breeding industry has done for a century. This decision has a chilling effect on long-term agriculture.”

 

Update: On May 23, the jury ruled in favor of the UC, concluding that Shaw and Larson “willfully infringed UC patents, breached duties of loyalty and fiduciary duty and used plant material owned by the UC Davis Public Strawberry Breeding Program to develop berries for California Berry Cultivars,” according to a UC Davis press release.

 

Written by: Aaron Liss — campus@theaggie.org

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