Grape Patents Upheld.

The USDA developed two table grape varieties, secured patents on them, and licensed them to the defendant who then sub-licensed the varieties to nurseries as authorized distributors.  The grape varieties were released to a grower in 2002 and the patents were secured in early 2006.  However, before the official release, a couple of growers began growing grapes from the patented varieties, but did not sell any grapes commercially or give away any mature fruit.  The growers knew that were not authorized to have the grape varieties and took steps to conceal their possession of the varieties.  The plaintiffs challenged the patents as invalid due to a public use more than a year before the date of the patent application.  The trial court upheld the patents as valid because the growers' use and cultivation of the subject varieties was limited in scope and private, and because the vines were "hiding in plain sight."  Also, the trial court determined that the defendant had no reason to believe that the growers had unauthorized possession of the grapes.  On further review, the appellate court affirmed.  The court determined that the grapes in issue had not been generally circulated before the patents were applied for.  Thus the patents were valid  because the "invention" was not "accessible to the public" or "commercially exploited" for more than one year before patent protection was sought.     Delano Farms Company, et al. v. The California Table Grape Commission, et al., No. 2014-1030, 2015 U.S. App. Lexis 346 (Fed. Cir. Jan. 9, 2015), aff'g., No. 1:07-CV-0`6`0-SEH-JLT, 2013 U.S. Dist. LEXIS 130729 (E.D. Cal. Sept. 12, 2013).

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