California Marketers Stalk Big Bucks in Celery : At Issue in Lawsuit: Exclusive Rights to Use of Hardier Seed
When it comes to celery, shoppers probably consider that a stalk is a stalk is a stalk. After all, poet Ogden Nash covered the subject in a mere dozen words, to wit:
Celery raw
Develops the jaw,
But celery stewed
Is more quickly chewed.
But to growers, all celery is not alike. Those in California, which produces more than two-thirds of the nation’s celery, distinguish between at least eight commercial varieties of seed, each possessing its own year-round growing characteristics. Such subtle differences could spell big profits in supermarket sales if, for example, one producer’s plants resisted disease or survived a heat spell while those of neighboring farmers died or “bolted” and went to seed.
Such differences underlie an unusual lawsuit pitting two of the nation’s major celery marketers and distributors.
The protagonists are headquartered in Salinas, the capital of California’s salad bowl. Bud Antle Inc. is a subsidiary of Los Angeles-based Castle & Cooke’s Dole Food Co., and Tanimura & Antle, a partnership created by former Bud Antle executives after Castle & Cooke acquired the one-time family firm in 1978.
Last month, Bud Antle won a preliminary injunction blocking further use by Tanimura & Antle of a strain of celery seed called Napolean for which Bud Antle acquired exclusive exploitation rights under the federal Plant Variety Protective Act.
Consumers may not feel the consequences of the outcome, celery being celery. But if Bud Antle confirms its hold on Napolean, the company and farmers who agree to grow for the produce marketer will have exclusive use of a seed capable of resisting not only hot-weather “bolting” but a soil microorganism fatal to celery ( fusarium yellows, race 2 ) . That, in turn, could help Bud Antle bring into its fold more of the state’s best celery farmers.
That’s important, said Ted Batkin, manager of the California Celery Research Advisory Board, because the parent firm is bent on distinguishing its fresh produce with consumer-recognized brands similar to Dole pineapples.
“It is part of Dole’s agenda to develop consumer awareness and brand identification,” Batkin explained. “That’s no secret, and they have done an outstanding job in making the Bud label (of lettuce) well known.”
Even more important may be the message Dole’s parent, Castle & Cooke, is sending competitors by its litigation--that it will sue, if necessary, to protect the fruits (and vegetables) of its plant research. The company coupled its brief announcement of the preliminary injunction obtained in U.S. District Court in San Jose with a warning also that any future infringements “will be vigorously pursued.”
The celery-seed lawsuit draws on federal legislation enacted 18 years ago but only lightly litigated since. In late 1980, the Plant Variety Protective Act was extended to cover “soup vegetables,” a category that includes celery.
Under the act, the U.S. Department of Agriculture has issued more than 2,000 certificates recognizing the “sexual” propagation of distinctive new strains of plants through cross-breeding (as opposed to “asexual” grafting, which the act doesn’t cover), said Kenneth H. Evans, the commissioner of USDA’s Plant Variety Protection Office in Suitland, Md. (The act would also cover plants altered through genetic engineering, but so far, he said, these high-tech firms have favored the nation’s well-established patent laws.)
The plant certificates grant breeders exclusive exploitation rights for 17 years, offering a chance to recapture research costs. Sexual plant breeding, Evans said, can run into hundreds of thousands of dollars and extend over 10 years and more.
But the plant legislation leaves enforcement to certificate holders, which explains the Bud Antle lawsuit. In it, Bud Antle claims that Tanimura & Antle violated Bud Antle’s exclusive exploitation rights for Napolean celery seed.
Bud Antle acquired the Napolean certificate last year in settling a similar lawsuit against a former competitor, Scattini Seed Co. Napolean, the company argued in that case, was really Bud Special , another protected strain owned by Bud Antle, masquerading under an assumed identity. Moreover, it added, Napolean was developed from Bud Antle research acquired improperly from the firm’s former research director.
Under the settlement, Scattini assigned its proprietary rights to Napolean--knock-off or not--to Bud Antle. Scattini also agreed to notify its customers who had bought the seed that they must grow it out to celery and not use it to produce more Napolean seed.
The present suit claims that Tanimura & Antle, which had bought Napolean seed from Scattini, has failed to abide by those restrictions, according to Neil A. Smith, the San Francisco attorney who filed the complaint on behalf of Bud Antle. (T & A, as the company is also known, declined comment on the case.)
Double the Number
On Sept. 23, the company persuaded Judge Robert P. Aguilar that a preliminary injunction was warranted to halt a rapid proliferation of Napolean seed that could render proprietary rights moot. In issuing his order, Aguilar also indicated his belief that Bud Antle “is likely to succeed in the merits of the case.”
“Proprietary rights used to be generally for technology,” Smith said in an interview. “But there is a lot of research going on to improve the quality of agricultural products.”
Indeed, the number of applications for plant certificates filed under the Plant Variety Protection Act now runs double what it did even half a dozen years ago, 230 last year versus an annual average of 110 earlier, said commissioner Evans. But in 18 years, he added, only a handful of certificate holders have sought to enforce their rights. These include Bud Antle’s previous suit and others involving protected strains of cotton and Kentucky blue grass.
“There have been a lot of what seed companies consider violations ,” Evans said, “but in many cases they are difficult to verify and to prosecute.”
While celery may be plain and dull--whether raw or stewed--it still is a valuable crop for California, usually ranking within the top 25 of the state’s 250 commercial crops. Celery, which is produced mainly in Ventura, Monterey and Santa Barbara counties, weighed in at 633,550 tons last year, earning farmers $136.4 million.
