A federal judge has refused to dismiss the Canadian government’s lawsuit against several Washington farms that it alleges infringed on a cherry tree plant patent.

The farming operations — Van Well Nursery, Monson Fruit Co., and Gordon and Sally Goodwin — haven’t proved the Canadian government’s patent for Staccato cherries is invalid, according to Chief U.S. District Judge Stanley Bastian in Spokane, Wash.

The cherry cultivar is considered to provide a market advantage to farmers because it matures after other common varieties in late summer.

There are still too many factual uncertainties over the plant patent for the case to be decided as a matter of law, which is known as summary judgment, the judge said. “In this case, the court finds that genuine disputes of material fact preclude summary judgment on the issue of patent invalidity.”

In 2020, the Canadian Minister of Agriculture and Agri-food filed a lawsuit against the defendants, claiming that Van Well Nursery had transferred Staccato cherry trees to Gordon Goodwin contrary to a license with its agricultural research and development center in British Columbia.

The complaint alleged that Goodwin patented a new cultivar called Glory that’s genetically indistinguishable from Staccato, which was delivered to Monson Fruit for the propagation of “hundreds of acres” of trees.

Goodwin has said that Glory trees are distinct from the Staccato variety, and the defendants have argued in court that the Canadian government’s patent is invalid and unenforceable, justifying a dismissal of the lawsuit.

Specifically, the farms argue that under the law at the time, the Canadian government disqualified the Staccato trees from a plant patent because it had been offered for commercial sale more than a year before the patent application.

The defendants claim the patent would have been denied if the Canadian government hadn’t “withheld critical information” from U.S. authorities about testing agreements for the trees, the judge said.

“They contend that business records depict an exchange of money in return for Staccato material and that the testing agreements amounted to semi-commercial, if not commercial, sales,” Bastian said. The Canadian government, meanwhile, counters that “the testing was a permissible experimental use.”

However, a reasonable jury could find the Canadian government retained ownership of the Staccato plant material under the testing agreements, which were legitimate and didn’t negate the plant patent, the judge said.

“And crucially, Monson Fruit, Van Well, and the Goodwins did not produce a single definite example of a commercial sale or offer of Staccato before the critical date,” Bastian said.

However, the judge will allow the lawsuit to proceed and for the defendants to argue that the patent was fraudulent and unlawfully restrained trade.

The farms aren’t yet required to prove “anti-competitive conduct” at this “early stage” of the litigation, but should be allowed to pursue their theory, he said. “Enforcement of a patent procured by fraud may constitute anticompetitive conduct, as it is a form of economic coercion that antitrust laws were intended to prevent.”