A federal judge has determined the Canadian government cannot enforce its patent for a popular late-season cherry variety against several farms in Washington.

Canada’s agriculture ministry accused the growers of propagating the Staccato cherry cultivar without permission, but Chief U.S. District Judge Stanley Bastian has now declared the patent void and rejected the infringement claim against the three farms.

However, the judge has refused to entirely dismiss the Canadian government’s complaint against Van Well Nursery, Monson Fruit and Gordon and Sally Goodwin, all of whom operate near Wenatchee, Wash.

Though the patent’s invalidity may affect the lawsuit’s remaining claims, the judge said he must hear further arguments before ruling on allegations of false advertising and unfair competition, among others.

Staccato cherries, which were developed by a breeder working for the Canadian government, typically fetch a premium price because they mature later in the summer than other commercial varieties.

In 2020, Canada’s Minister of Agriculture and Agri-Food filed a complaint alleging that Van Well Nursery acquired Staccato cherry trees under a license that allowed for testing and evaluation but expressly prohibited distribution of the cultivar.

The complaint claimed that Van Well Nursery impermissibly delivered a Staccato tree among trees of another variety purchased by farmers Gordon and Sally Goodwin, who later noticed its unique features.

In 2012, Gordon Goodwin obtained a plant patent for a new cultivar named Glory that was actually based on the Staccato tree already patented by the Canadian government, according to the complaint.

Thousands of Glory trees were bought and planted by Monson Fruit in 2018 despite objections from the Summerland Varieties Corp., which helps test and commercialize the Canadian government’s varieties, the complaint said.

However, the judge’s decision to invalidate the Canadian government’s patent for Staccato hinged on the actions of Stemilt Growers, another cherry producer in the Wenatchee area that’s not a party to the lawsuit.

Stemilt Growers planted about three acres of Staccato trees under a testing license and sold about 18,200 pounds of their cherries for more than $2 a pound in 2000, a couple years before the Summerland Varieties Corp. began seeking a U.S. plant patent for the cultivar.

That timing proved critical in the legal dispute because plant varieties can’t be patented under federal law if they were sold commercially more than a year before the patent petition was filed.

Stemilt’s business records “unambiguously depict” a transaction in which Staccato cherries generated nearly $38,000 in revenues, providing “clear and convincing evidence of a contract for commercial sale,” the judge said.

Experimental use doesn’t preclude a plant variety from being patented, even if it occurs in the “public eye,” but this exception doesn’t apply to “market testing and commercial testing,” he said.

Staccato trees that were “stable, true-to-type and identical to the original tree” had been asexually propagated since the early 1990s, the judge said.

The cultivar was thus ready for patenting, or “reduced to practice,” by the time Stemilt commercially sold the cherries in 2000, meaning that wasn’t a “permissible experimental use,” according to the ruling. “Because the patent is invalid, it cannot be infringed.”