WSU Files Counter Suits to Protect New Apple Variety

The distinctive new apple should be widely available by early next year.

The new apple variety WA 38, was developed by Washington State University is being marketed under the brand name Cosmic Crisp. Photo: WSU

(PULLMAN, Wash.) - Washington State University announced today that it has taken legal action in state and federal court against Phytelligence, an agricultural biotechnology company, for breach of contract and patent and trademark infringement.

The litigation, which relates to the Cosmic Crisp apple, was filed to protect WSU’s intellectual property rights.

Washington State University researchers began developing the Cosmic Crisp brand apple in 1998 and applied for a plant patent for the tree that produces the Cosmic Crisp in 2012. The distinctive new apple varietal is expected to be widely available on store shelves by early next year.

According to the countersuits filed by WSU, Phytelligence had signed a research agreement with WSU to propagate the trees that produce Cosmic Crisp apples, subject to strict limits.

While the company was allowed to grow the trees, it was explicitly prohibited from selling those trees without a license. The propagation agreement specified that any trees grown by Phytelligence would remain the property of the University unless the company later obtained a license to sell them to third parties.

Phytelligence never secured a license. However, in 2016, the company sold 135,000 Cosmic Crisp trees to an outside grower.

"It takes a long time to prepare a new apple variety for market. Washington State University has been developing the Cosmic Crisp apple for the past 20 years,” said Chris Keane, Vice President for Research at Washington State University.

"We have no choice but to vigorously defend our intellectual property rights against this serious breach of contract and infringement of our patent.

"Phytelligence’s actions threaten nearly two decades of work and the financial support provided by apple growers in the state of Washington. We owe it to all those companies that have followed the rules.

"We have to protect the significant investment the University and Washington growers have made to bring this new product to market,” Keane said.

Nearly 5 million Cosmic Crisp trees are expected to be planted in 2018. The Cosmic Crisp apple is highly valued by growers and retailers for its large, juicy fruit; exceptional flavor; and slowness to brown after being cut.

Equally important, the new varietal can be stored for more than a year and still maintain its distinctive texture and flavor.

Washington State University’s countersuits are in response to legal action Phytelligence brought against the University earlier this year.

WSU has filed its breach of contract countersuit in King County, Washington Superior Court and its patent infringement claim in the United States District Court for the Western District of Washington.

Source: Washington State University