Mar 15, 2018
WSU, Phytelligence sue each other over Cosmic Crisp apple

Washington State University (WSU) and a private company spun off from the university have filed dueling lawsuits regarding commercialization of the much-anticipated Cosmic Crisp apples.

WSU announced March 14 it had filed a countersuit in response to a legal challenge from Phytelligence, the company founded by WSU professor Amit Dhingra. WSU filed a breach of contract countersuit in King County, Washington Superior Court in addition to a patent infringement claim filed in the United States District Court for the Western District of Washington.

The lawsuits center on the contracts and licensing activities surrounding the Cosmic Crisp – the brand name for WA 38 – a copyrighted cross of Enterprise and Honeycrisp. Roughly 5 million trees Cosmic Crisp are slated to be planted during 2018 alone, with the variety remaining exclusive to growers in Washington state for at least a decade. The first apples for consumers are expected in 2019.

In a released statement, Phytelligence CE0 Ken Hunt said the company in late February filed a lawsuit against WSU to protect Phytelligence’s right to propagate Cosmic Crisp apples for Washington state growers.

“In 2012, we were granted an option for a license from WSU or its agent to commercially propagate Cosmic Crisp,” Hunt said. “We have exercised that option; however, WSU and its agents have not yet provided the license to Phytelligence. Our efforts have been met with repeated delays and misinformation, ultimately preventing us from propagating Cosmic Crisp to date. During this time, Washington state growers have been increasingly frustrated with unnecessarily restricted access to Cosmic Crisp.”

In a news release, WSU said Phytelligence was allowed to grow Cosmic Crisp trees, but it was prohibited from selling the 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, according to WSU.

Phytelligence maintains its 2012 agreement gives it the right to securing an executed commercial license from the Washington State University Research Foundation, which it was denied on several occasions.

WSU also accuses Phytelligence of selling 135,000 Cosmic Crisp trees to an outside grower despite never obtaining a license, which Phytelligence denies.

WSU Vice President for Research Chris Keane said the university has been developing the apple for 20 years and must defend its copyright.

“We have no choice but to vigorously defend our intellectual property rights against this serious breach of contract and infringement of our patent,” Keane said. “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.”

Hunt held out hope for a mutual agreement with WSU resolving the dispute.

“Given our long-standing relationship with WSU and our shared interests, we are optimistic this issue can be resolved to everyone’s benefit,” he said. “We recognize and value WSU’s broad and continuing support of Phytelligence; our concerns in this matter stem from the actions of a few individuals within the University. As such, concurrent to this legal filing, we are continuing to work directly with WSU to identify a mutually beneficial resolution.

The Cosmic Crisp apples are anticipated to be a hit with consumers because they are large and juicy, with exceptional flavor, and because they are slow to brown after being cut. The new varietal can also be stored for more than a year and still maintain its distinctive texture and flavor – a trait that WSU said is equally important as its consumer traits.

– Stephen Kloosterman, Assistant Editor


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