The Queen v. Van Well Nursery - Complaint (Plant Patent)

Case 2:20-cv-00181 ECF No. 1 filed 05/18/20 PageID.
1 Page 1 of 22
1 Jennifer D. Bennett (pro hac vice forthcoming)

2 Jennifer.Bennett@dentons.com
DENTONS US LLP
3 One Market Plaza, Spear Tower, 24th Floor
San Francisco, California 94105
4
Tel: 415-267-4000
5
Daniel W. Short, WSBA #7945
6 dan.short@painebamblen.com
PAINE HAMBLEN LLP
7
717 West Sprague Avenue, #1200
8 Spokane, Washington 99201
Tel: 509-455-6000
9
10 Attorneys for Plaintiff

Her Majesty the Queen in Right of Canada as
11 represented by the Minister of Agriculture and
Agri-Food.
12
13
UNITED STATES DISTRICT COURT
14 EASTERN DISTRICT OF WASHINGTON
15
HER MAJESTY THE QUEEN IN ) Case No. CaseNumber
16 RIGHT OF CANADA AS )
REPRESENTED BY THE MINISTER )
17 COMPLAINT FOR: (1) PLANT
OF AGRICULTURE AND AGRI-FOOD, )
18 a Canadian governmental authority, ) PATENT INFRINGEMENT; (2)
) CORRECTION OF INVENTORSHIP;
19 Plaintiff, ) (3) DECLARATION OF
) OWNERSHIP; (4) UNFAIR
20 vs.
) COMPETITION AND FALSE
21 ) DESIGNATION OF ORIGIN UNDER
VAN WELL NURSERY, INC., a
) THE LANHAM ACT; (5) FALSE
Washington
22
) ADVERTISING UNDER THE
Corporation, MONSON FRUIT
23 ) LANHAM ACT; (6) CONVERSION;
COMPANY, INC., a Washington
(7) TORTIOUS INTERFERENCE
Corporation, GORDON GOODWIN, an )
24 WITH BUSINESS RELATIONS; AND
individual, and SALLY GOODWIN, an )
) (8) UNFAIR COMPETITION.
25 individual.
)
26 Defendants )
DEMAND FOR JURY TRIAL
COMPLAINT -1-
Case 2:20-cv-00181 ECF No. 1 filed 05/18/20 PageID.2 Page 2 of 22
1 COMPLAINT
2 1. Plaintiff Her Majesty the Queen in Right of Canada as represented by the
3 Minister of Agriculture and Agri-Food (“Plaintiff” or “AAFC”), brings this Complaint
4 against Defendants Van Well Nursery, Inc., Monson Fruit Company and Gordon and
5 Sally Goodwin (collectively “Defendants”), for injunctive relief and monetary damages
6 as well as such other relief as specified herein, as follows:
7 INTRODUCTION
8 2. This case relates to the protection and enforcement of intellectual property
9 rights in a Canadian bred sweet cherry called Staccato®. Pursuant to a Canadian
10 government funded tree fruit breeding program, Canadian breeder, W. David Lane bred
11 a new sweet cherry tree. One of the most distinguishing characteristics of the new
12 variety was its late maturity. This late fruit maturity extends the cherry harvest season
13 and gives a distinct financial advantage to growers. Agriculture and Agri-Food Canada
14 (“AAFC”) patented the new variety and called it Staccato®. Knowing that Staccato®
15 is an AAFC variety, knowing that it is a patented variety, and knowing that is known to
16 consumers as Staccato®, Defendants Van Well, Monson and Goodwin have and are
17 asexually propagating, possessing, growing, and selling trees and/or fruit they call
18 “Glory,” which is actually AAFC’s Staccato®. AAFC brings this lawsuit to stop this
19 flagrant and willful infringement of AAFC’s Staccato® patent and false, misleading,
20 deceptive and unfair business practices.
21 3. Defendant Van Well came into possession of the variety, when under the
22 protection of a testing agreement, Plaintiff AAFC provided Defendant Van Well with
23 Staccato® for testing and evaluation. The agreement expressly prohibited Van Well
24 from distributing or selling Staccato®. Many years later, Van Well entered into an
25 agreement with AAFC’s commercialization licensee, Summerland Varieties
26 Corporation (“SVC”), then known as PICO, to propagate, market and sell a different
COMPLAINT -2-
1 AAFC bred cherry variety, Sonata. Pursuant to Van Well’s agreement with PICO, Van
2 Well, obtained, planted, and propagated AAFC’s Sonata. Sometime after Defendant
3 Van Well received Sonata from PICO, Defendant Goodwin purchased from Defendant
4 Van Well, AAFC’s Sonata trees.
5 4. However, on information and belief, when Van Well delivered Sonata
6 trees to Goodwin, Van Well also, without permission from AAFC, delivered AAFC’s
7 Staccato® to Goodwin. The Sonata and Staccato® trees were both planted in
8 Goodwin’s orchard. Defendant Goodwin later rightfully observed that one of his
9 Sonata trees was different from the others. It was different because the tree he observed
10 was not Sonata but was AAFC’s Staccato®.
11 5. When Goodwin noticed that one of the trees was different he filed for a
12 U.S. patent, entitled “Sweet Cherry Tree Named ‘Goodwin;” on the allegedly different
13 tree he observed in his orchard and commercially called it “Glory.”
14 6. Goodwin was granted a U.S. plant patent for Glory on May 1, 2012 which
15 he subsequently assigned to Defendant Van Well. However, the variety described and
16 claimed in the “Glory” patent was actually Staccato®. Because the Glory patent claims
17 the Staccato® variety, AAFC breeder W. David Lane is the proper inventor of the
18 variety and AAFC the owner of the “Glory” patent.
19 7. Around 2012, AAFC and SVC learned that Goodwin had an allegedly new
20 variety he called “Glory” in his orchard, had filed for patent protection and that
21 Defendant Van Well was the owner of the patent. In early 2014, after a number of
22 genetic tests were conducted, SVC demanded Van Well stop marketing and selling
23 “Glory” since test results showed that “Glory” was actually AAFC’s Staccato®. In
24 2014, SVC and Defendant Van Well settled their dispute, whereby Defendant Van Well
25 agreed not to sell Glory, to sell to SVC whatever Glory trees Van Well had in its
26 possession, and destroy the Glory trees. And, in 2015 Van Well further confirmed to
COMPLAINT -3-
1 SVC that it had terminated its agreement with Defendant Goodwin relating to “Glory”.
2 Thus, in 2015, AAFC understood and relied upon Van Well’s representations that Van
3 Well was no longer going to grow, asexually propagate, distribute, market or sell Glory
4 trees, that Van Well no longer possessed Glory and that all of Van Well’s business
5 activities relating to Glory had ceased.
6 8. However, in approximately October of 2017, SVC learned Van Well
7 reneged on its agreement with SVC by resuming its propagation of Glory trees for sale
8 of the trees in 2018 and 2019. Accordingly, in February of 2018, SVC repeatedly
9 demanded that Van Well not propagate or sell any Glory trees. And, on March 26,
10 2018, AAFC formally notified Defendant Van Well that it did not have permission
11 from AAFC to propagate or sell Glory and demanded Van Well not to do so.
12 9. In approximately October of 2017, SVC also learned that the Glory trees
13 Van Well planted in 2017 were intended to be shipped and sold to Defendant Monson
14 Fruit Company, a Washington State grower. It was later confirmed by Van Well in
15 March of 2018 that the trees were ready to be shipped to Monson. Thus, beginning in
16 early April of 2018, SVC contacted Defendant Monson regarding Glory and warned
17 Defendant Monson not to take delivery of any Glory trees. But, on May 31, 2018, after
18 SVC followed-up with Monson regarding the Glory trees, Defendant Monson told SVC
19 that the Glory trees had already been planted. On information and belief, Defendant
20 Goodwin also provided Glory budwood to Defendant Monson. And, on information
21 and belief, Defendant Monson has also used the budwood obtained from Goodwin to
22 propagate hundreds of acres of Glory trees.
23 10. Despite unambiguous demands from AAFC and SVC in 2018 to Van Well
24 not to propagate and sell Glory trees and for Monson not to accept the trees, on
25 information and belief, Defendant Van Well has sold thousands of Glory trees to
26 Defendant Monson so that Defendant Monson could plant the trees and sell their fruit.
COMPLAINT -4-
1 Despite their knowledge that propagating, making, using, offering for sale, and selling
2 Glory, i.e., the patented Staccato® trees and their fruit, are unlicensed activities that
3 infringe the ’551 Staccato Patent, Defendant Van Well and Monson refused to refrain
4 from conducting these activities, and misled consumers.
5 11. On information and belief, each Defendant has grown and continues to
6 grow, has offered for sale and continues to offer for sale, and has sold or continues to
7 sell Glory trees or their fruit, which is the patented Staccato®, and will continue to do
8 so unless enjoined by this court.
9 THE PARTIES
10 12. Plaintiff Her Majesty the Queen in Right of Canada as represented by the
11 Minister of Agriculture and Agri-Food (“AAFC”) is a governmental authority
12 recognized under the federal laws of Canada. AAFC’s principal place of business is
13 located at 1341 Baseline Road, Ottawa, Ontario, Canada. The AAFC tree fruit
14 breeding program was established in 1924 to provide new varieties for the tree fruit
15 industry of British Columbia, Canada, and the world. Work at AAFC continues to
16 develop fruit varieties with specific traits and qualities. This breeding program at
17 AAFC’s Summerland Research and Development Centre, has produced many new tree
18 fruit varieties over the years including, the sweet cherry variety Staccato®. There are
19 three broad objectives of the cherry breeding program: (1) to diversify the product to
20 allow growers to take advantage of niche markets; (2) to improve environmental
21 adaptation to major fruit growing areas, for consistent production of high quality fruit;
22 and (3) to reduce the cost of production.
23 13. On information and belief, Defendant Van Well Nursery Inc. (“Van
24 Well”), is a Washington state corporation, having a principal place of business at 2821
25 Grant Road, East Wenatchee, Washington. Van Well is engaged in the business of
26 growing and selling fruit trees including, sweet cherry trees.
COMPLAINT -5-
1 14. On information and belief, Defendant Monson Fruit Company, Inc.

2 (“Monson”), is a Washington state corporation, having a principal place of business at
3 252 N. Rushmore Road, Selah, Washington. Monson Fruit Company is engaged in the
4 business of growing, supplying and selling fruit around the world, including, sweet
5 cherries.
6 15. On information and belief, Defendant Gordon Goodwin (“Goodwin”), is a
7 natural person residing in this judicial district, having an address at 5002 Joe Miller
8 Road, Wenatchee, Washington. Goodwin is a grower of sweet cherry trees and the
9 named inventor and owner of the Glory Patent.
10 16. On information and belief, Defendant Sally Goodwin is a natural person
11 residing in this judicial district, having an address at 5002 Joe Miller Road, Wenatchee,
12 Washington. Sally Goodwin is an owner of the Glory Patent along with her husband
13 Gordon Goodwin.
14 JURISDICTION AND VENUE
15 17. This Court has original jurisdiction over Plaintiff’s claims pursuant to 28
16 U.S.C. §§ 1331, 1338, 1367(a) and 2201. Additionally, this court has subject matter
17 jurisdiction over this action pursuant to 28 U.S.C. § 1332, as complete diversity exists
18 between Plaintiff and all Defendants and the amount in controversy exceeds $75,000.
19 18. This Court has original jurisdiction over Plaintiff’s claim for unfair
20 competition pursuant to 28 U.S.C. § 1338(b) because those state-law claims are related
21 to the claims under the patent laws and the Lanham Act. Alternatively, this Court has
22 supplemental jurisdiction over the related state-law claims pursuant to 28 U.S.C. §
23 1367(a) because those state-law claims form part of the same case or controversy and
24 derive from a common nucleus of operative facts as Plaintiff’s patent and Lanham Act
25 claims.
26 19. This Court also has personal jurisdiction over Defendants as they reside in
COMPLAINT -6-
1 this judicial district, they have continuous and systemic contacts with this judicial
2 district, have regularly conducted business in this judicial district, a substantial part of
3 the acts complained herein occurred in this judicial district, and/or Defendants have
4 committed acts of infringement in this judicial district.
5 20. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b),
6 1391(c), and 1400(b) because Van Well, Monson and the Goodwins reside in this
7 judicial district, have regularly conducted business in this judicial district, a substantial
8 part of the acts complained herein occurred in this judicial district, and/or Defendants
9 have committed acts of infringement in this judicial district.
10 FACTUAL BACKGROUND
11 A. THE ’551 STACCATO PATENT AND TRADEMARK
12 21. United States Patent No. PP 20,551 P3 (“’551 Staccato patent”), entitled
13 “Cherry Tree Named ‘13S2009’” was filed on March 6, 2003 and was issued on
14 December 15, 2009. The ’551 Staccato patent claims priority to a provisional
15 application filed on March 13, 2002. A true and correct copy of the ’551 Staccato
16 patent is attached as Exhibit A. This variety of cherry tree is commonly known as
17 Staccato®. The named inventor is W. David Lane. Her Majesty the Queen in Right of
18 Canada, as represented by AAFC, is the owner, by operation of Canadian law and
19 assignment, of the ’551 Staccato Patent.
20 22. The ’551 Staccato Patent describes and claims a new and distinct variety
21 of cherry tree denominated “13S2009,” and was given the commercial name
22 “Staccato®”.
23 23. Staccato®’s most distinguishing characteristic is that the fruit matures, on
24 average, significantly later than most other commercial cherry varieties. This very late
25 fruit maturity extends the cherry harvest season and gives a distinct financial advantage
26 to growers.
COMPLAINT -7-
1 24. In the interest of receiving a royalty stream for the breeding program while
2 protecting the interests of the Canadian cherry growers, AAFC has entered into a
3 commercialization agreement with SVC. AAFC has sought to control the distribution
4 of Staccato® trees by filing for plant variety protection and/or plant breeders’ rights in
5 Canada, the European Union and seven other foreign countries.
6 25. Plaintiff AAFC is the owner of the U.S. federally registered mark
7 Staccato® (“the Staccato® mark”). The Staccato® trademark is protected in the United
8 States, Canada, the European Union and three other foreign countries.
9 26. AAFC owns all right, title, and interest in the Staccato® mark for goods
10 and services relating to live commercial fruit trees and fresh deciduous fruit, including
11 federal trademark Registration No. 3,245,440, issued May 22, 2007, in International
12 Class 31 (a true and correct copy of certificate of registration is attached as Exhibit B.)
13 27. AAFC and its licensees have used the Staccato® mark in commerce in the
14 United States since at least as early as August 1, 2002. The Staccato® mark has been
15 used in interstate commerce over the last seventeen years to distinguish Staccato®
16 sweet cherry trees and/or fruit from other cherry trees and/or fruit.
17 28. The Staccato® mark is a strong, arbitrary mark that warrants broad
18 protection against use that is not authorized by AAFC.
19 B. THE RELATIONSHIP BETWEEN VAN WELL AND PLAINTIFF
20 AAFC AND SVC
21 29. In late August 1990, Plaintiff AAFC and Defendant Van Well entered into
22 a Restriction Agreement for Plant Breeding Selections (“Restriction Agreement”).
23 “Selections” was defined, among others, to include 13S-20-9, later named Staccato®.
24 13S-20-9, Staccato®, was provided to Van Well under the terms of this agreement.
25 This Restriction Agreement obligated Defendant Van Well to restrict distribution and
26 propagation of the selections, protect AAFC’s rights to the selections, and report
COMPLAINT -8-
1 evaluations of the selections to AAFC. The Restriction Agreement also prohibited

2 selling or distributing any of the selections for any purpose. The Restriction
3 Agreement also provides that any mutation, is the property of AAFC.
4 30. In 1994, AAFC entered into a commercialization license with Summerland
5 Varieties Corporation (“SVC”), then known as PICO.
6 31. On July 15, 1998, SVC and Van Well entered into a Variety Development
7 Sublicense Agreement for AAFC variety Sonata. On information and belief, in the
8 summer of 1998, pursuant to the Variety Development agreement, SVC delivered
9 Sonata budwood to Defendant Van Well and Van Well budded Sonata trees. Defendant
10 Van Well later sold Sonata trees to Defendant Goodwin.
11 C. VAN WELL, GOODWIN, MONSON AND “GLORY”
12 32. On information and belief, Van Well delivered and sold Sonata trees to
13 Defendant Gordon Goodwin. On information and belief, Staccato® was also delivered
14 with the Sonata trees sold to Gordon Goodwin. The Staccato® tree was ultimately
15 planted in an orchard on Goodwin’s property and named “Glory” by Goodwin.
16 33. On December 1, 2010, Gordon Goodwin filed United States Patent No.
17 PP22,693, entitled “Sweet Cherry Tree Named ‘Goodwin’” (the “Glory ’693 Patent”).
18 The Glory ’693 Patent issued on May 1, 2012. A true and correct copy of the Glory
19 ’693 Patent is attached as Exhibit C. The named inventor is Gordon C. Goodwin and at
20 issuance the Glory’693 Patent was assigned to Defendant Van Well. On information
21 and belief, in 2015, the Glory ’693 Patent was later assigned to Defendant Goodwin and
22 Sally Goodwin. On information and belief, Defendant Goodwin and Sally Goodwin are
23 the current owners of the Glory ‘693 Patent.
24 34. According to the Glory ’693 Patent, like Staccato®, Glory matures a full
25 30 days after Bing and was initially selected for, and distinguished by, its late maturing
26 fruit. Additionally, a Good Fruit Grower article, found at
COMPLAINT -9-
1 https://www.goodfruit.com/glory-be/, Goodwin is quoted as stating, “I thought it

2 [Glory] was sick. Everything else is ripe and they were little green cherries.” The
3 article also states “[e]ach year the fruit on that one tree ripened weeks after the rest of
4 the fruit had been picked.”
5 35. Similarly, in an article found at
6 https://www.capitalpress.com/state/washington/hopes-are-high-for-new-glory-
7 cherry/article_afd2c4b4-5cb1-5b2b-a300-100639cc0cae.html, it states, “Goodwin
8 thought there was something different when a tree he purchased as a Sumleta [Sonata]
9 from East Wenatchee’s Van Well Nursery Inc. ripened about a month later than it
10 should have.”
11 36. According to the Glory ’693 Patent, Glory is a whole tree mutation of
12 “Sumleta” [Sonata]. Sumleta [Sonata] is another AAFC owned cherry tree and is
13 patented as United States Patent No. PP11,378. According to the Glory ’693 Patent,
14 Gordon planted AAFC’s Sonata tree in his cherry orchard. According to the Glory
15 ’693 Patent, in 2003 he observed that one of the Sonata trees was different than the
16 others. In particular, he noted that Glory’s fruit matured a week after Sonata and a full
17 30 days after Bing. This tree was then asexually propagated by budding onto Mazzard
18 rootstock. These trees were then planted in Goodwin’s orchard in 2005 and fruited in
19 2008. Then, in 2005, 150 trees were propagated on Gisela 6 rootstock using scionwood
20 from second generation and planted in 2007 and fruited in spring 2010. According to
21 the Glory ’693 Patent, all of the trees consistently carry the same late maturing
22 characteristic of the parent tree.
23 37. Glory bears little resemblance to Sonata and DNA results have shown they
24 are not related.
25 38. On information and belief, at some point after allegedly discovering Glory,
26 Defendant Goodwin provided Glory budwood to Defendant Monson. On information
COMPLAINT - 10 -
1 and belief, Defendant Monson received the Glory budwood from Defendant Goodwin,
2 grafted the Glory budwood, has propagated hundreds of acres of Glory and has sold and
3 continues to sell Glory fruit.
4 39. On information and belief, in 2008, Defendant Goodwin entered into an
5 agreement with Defendant Van Well to commercialize “Glory.” On information and
6 belief, in 2009, Van Well propagated the first Glory trees for commercial sale. And, on
7 August 16, 2010, Goodwin reported he did his first commercial picking of Glory.
8 40. On information and belief, on May 1, 2013, Defendant Van Well entered
9 into an agreement with Defendant Goodwin relating to certain rights in “Glory.” On
10 information and belief, in approximately 2015, Van Well terminated its agreement with
11 Goodwin. Just prior to terminating its agreement with Goodwin, in 2014, Van Well
12 agreed to sell to SVC whatever Glory trees Van Well had in its possession and to
13 destroy them. Thus, by 2015, AAFC understood at the time that Van Well was no
14 longer going to grow, asexually propagate, distribute or sell Glory trees and had ceased
15 all business relating to Glory.
16 41. However, in the Spring of 2018, about four years later, on information and
17 belief, Defendant Van Well sold six thousand Glory trees to Defendant Monson. On
18 information and belief, in 2019, Defendant Van Well sold an additional nine thousand
19 Glory trees to Defendant Monson. On information and belief, Defendant Monson
20 planted the Glory trees and will sell their fruit.
21 “GLORY” IS STACCATO®
22 42. Genetic studies have shown that Glory is Staccato®.
23 43. SVC obtained leaf samples of “Glory” trees and engaged Dr. Paul
24 Wiersma to compare the DNA of “Glory” with the DNA of Staccato® and Sonata, and
25 other cherry trees. The DNA results showed that Glory and Sonata are not related and
26 that there was no genetic difference between Glory and Staccato®.
COMPLAINT - 11 -
1 44. Dr. Paul Wiersma conducted additional DNA testing using more
2 sophisticated and sensitive single nucleotide polymorphism (SNP) analysis and
3 reported there was less than a .0076% chance that Glory is not Staccato®. This study
4 showed it was highly probable Glory was not unique from Staccato®- i.e., Glory and
5 Staccato® are the same.
6 45. On information and belief, at the time AAFC was conducting its DNA
7 studies, Defendant Van Well hired Dr. Dhingra, Professor, Washington State University
8 and founder of the company Phytelligence, to conduct a DNA study. Dr. Dhingra and
9 Dr. Wiersma discussed the differences between their respective studies and Dr. Dhingra
10 would not agree with Dr. Wiersma that Glory was Staccato®. Despite the differences
11 of opinions between the experts at the time, as explained above, Defendant Van Well
12 decided to sell to SVC the Glory trees it had in its possession and destroy them.
13 46. Then, in 2017, AAFC was advised of a peer reviewed study entitled
14 “Evaluation of multiple approaches to identify genome wide polymorphisms in closely
15 related genotypes of sweet cherry (Prunus avium L),” by Washington State University
16 researchers, Seanna Hewitt, Benjamin Kilian, Ramyya Hari, Tyson Koepke, Richard
17 Sharpe and Amit Dhingra (the “Hewitt paper”). Amit Dhingra is the same Dr. Dhingra
18 who participated in the earlier discussions described in paragraph 45 with Dr. Wiersma
19 regarding whether Glory was Staccato® on behalf of Defendant Van Well.
20 47. In the 2017 Hewitt paper, a number of genetic experiments were described
21 comparing the Staccato® and Glory genotypes. The Hewitt paper wrongly asserts that
22 whole genome sequencing (“WGS”) shows a difference between Glory and Staccato®.
23 The Hewitt paper WGS study is not reliable and does not show that Glory and
24 Staccato® have distinct genotypes. The Hewitt paper reported an alleged .161%
25 difference between the Staccato® and Glory genotypes. However, this difference was
26 within the error rate expected, but error rate was not considered by the authors.
COMPLAINT - 12 -
1 48. AAFC has conducted an independent study and has confirmed that any
2 alleged differences between the genotypes of Staccato® and Glory from the Hewitt
3 paper were within the error rate and would be expected when comparing the same
4 variety. Specifically, any SNP differences are not due to differences between the
5 cultivars themselves but rather due to the method of analysis.
6 49. In the independent and blind study, Staccato® from Canada, Staccato®
7 obtained from Washington State University (“WSU”), and Glory obtained from WSU
8 could not be reliably distinguished from each other given the variant pattern alone. The
9 analysis showed that the WGS variant differences seen were well within the margins of
10 WGS noise and sample preparation and/or sequencing error and indeed there was
11 greater similarity between the Glory from WSU and the Staccato® from WSU samples
12 than there was between the Staccato® from WSU and the Staccato® from Canada
13 samples. In accord, the Hewitt paper does not support that Glory is different than
14 Staccato® and when the analysis is conducted properly, shows Glory is the same as
15 Staccato®. Thus, it is improper to rely on the Hewitt paper to support the allegation
16 that Glory is different than Staccato®.
17 50. Defendants are not authorized by AAFC to have the Glory trees in their
18 possession and are not licensed to asexually propagate, possess, sell, market or
19 distribute Glory trees and/or their fruit.
20 51. Defendants Goodwin and Van Well have already admitted to possessing,
21 planting and selling Glory trees and Defendant Monson has admitted to planting the
22 trees and is also selling Glory fruit. On information and belief, the defendants have
23 grown and will continue to grow, have asexually reproduced and will continue to
24 asexually reproduce, and are offering for sale and will continue to offer for sale, the
25 patented Staccato® trees or fruit and improperly calling it Glory. Defendants have
26 refused to refrain from growing, asexually reproducing, making, using, offering for
COMPLAINT - 13 -
1 sale, or selling the patented Staccato® (i.e., “Glory”) trees or fruit.

2 FIRST CAUSE OF ACTION: PLANT PATENT INFRINGEMENT AGAINST
3 DEFENDANTS
4 52. Plaintiff hereby incorporates by reference paragraphs 1-51, inclusive, as if
5 set forth fully herein.
6 53. In violation of 35 U.S.C. § 271, each of the Defendants is directly
7 infringing the ’551 Staccato Patent by practicing the claim of the ’551 Staccato Patent
8 in the asexually propagating, making, using, offering for sale, and/or selling the Glory
9 cherry tree and/or the fruit thereof.
10 54. On information and belief, upon knowledge of the ’551 Staccato Patent,
11 each of Defendants is contributing to the infringement of, and/or inducing infringement
12 of the ’551 Staccato Patent by, among other things, knowingly and with intent, actively
13 encouraging its customers, retailers and/or growers to propagate, make, use, offer for
14 sale and/or sell Glory trees and/or their fruit in a manner that constitutes infringement
15 of the ’551 Staccato Patent. There are no substantial uses of the Glory trees made,
16 used, sold or offered for sale by Defendants that do not infringe the ’551 Staccato
17 patent. Plaintiff has been and will be damaged by Defendants’ infringement unless
18 enjoined by this court.
19 SECOND CAUSE OF ACTION: CORRECTION OF INVENTORSHIP UNDER
20 35 U.S.C. § 256 AGAINST GOODWIN DEFENDANTS
23 56. As mentioned above, Defendant Gordon Goodwin applied for and was
24 awarded the Glory’693 Patent based on the representation that he was the sole inventor.
25 57. W. David Lane is the sole inventor of the Glory ‘693 Patent.
26 58. Defendants Gordon and Sally Goodwin are the current assignees of the
COMPLAINT - 14 -
1 Glory ‘693 Patent.

2 59. The inventorship of the Glory patent is incorrect because through
3 omission, inadvertence and/or error, W. David Lane was not listed as the sole inventor
4 on the Glory ’693 Patent.
5 60. AAFC is the owner by operation of Canadian law of the Glory ‘693 Patent.
6 61. AAFC maintains a financial interest in the Glory ’693 Patent.
7 62. The Glory patent’s description that it is a of Sumleta [Sonata] is not
8 correct.
9 63. Given that the Glory ’693 Patent claims a variety of sweet cherry bred by
10 AAFC breeder W. David Lane, AAFC requests an order correcting inventorship on the
11 Glory ’693 Patent to name W. David Lane as the sole inventor.
12 THIRD CAUSE OF ACTION: DECLARATORY JUDGMENT UNDER 28 U.S.C.
13 § 2201 AGAINST GOODWIN DEFENDANTS
16 65. W. David Lane is the sole inventor of the Glory ‘693 Patent.
17 66. W. David Lane is not listed as the inventor of the Glory ‘693 Patent and
18 AAFC is not listed as the owner or assignee.
19 67. An actual, present and justiciable controversy has arisen concerning the
20 inventorship and ownership of the ‘693 patent.
21 68. Plaintiff seeks declaratory judgment from this Court that W. David Lane is
22 the sole inventor of the ‘693 patent and AAFC is the sole legal owner of the ‘693
23 patent.
24
25
26
COMPLAINT - 15 -
1 FOURTH CAUSE OF ACTION: UNFAIR COMPETITION AND FALSE

2 DESIGNATION OF ORIGIN UNDER THE LANHAM ACT (15 U.S.C. §
3 1125(A)(1)(A)) AGAINST DEFENDANTS
6 70. AAFC’s trademark rights in its Staccato® mark are protected under
7 federal common law.
8 71. On information and belief, Defendants have caused goods to enter into
9 interstate commerce with the false use of the name “Glory” on the trademarked
10 Staccato® trees and/or fruit.
11 72. Defendants’ false use of the name “Glory” to identify the trademarked
12 Staccato® tree and/or fruit constitutes a false designation of origin. In doing so,
13 Defendants have falsely designated the origin of the trees and/or fruit in violation of 15
14 U.S.C. § 1125(a).
15 73. Defendants’ false designation of origin has caused or is likely to cause
16 confusion in the marketplace, including confusion among retailers, growers, customers
17 and the general public, to cause mistake and/or deception as to the affiliation,
18 connection, or association of defendants with AAFC and/or Staccato® and as to the
19 origin of defendants’ goods.
20 74. Defendants’ propagation, marketing, and sale of AAFC’s trademarked
21 Staccato® trees and/or fruit as Defendants’ own “Glory” constitutes a scheme of
22 reverse palming off. These acts are in violation of 15 U.S.C. § 1125(a), in that
23 Defendants have deprived Plaintiff of commercial opportunities in connection with the
24 trademarked Staccato®’s advertising value and goodwill that otherwise would arise
25 from public knowledge of the true source of the product.
26
COMPLAINT - 16 -
1 75. As a further direct and proximate result of Defendants’ use of the name
2 Glory to sell Staccato® trees and/or fruit, Defendants have damaged and will continue
3 to damage AAFC’s good will and reputation in its trademark rights, and is likely to
4 cause lost sales and lost profits to AAFC. Defendant’s actions have caused and will
5 continue to cause irreparable harm to AAFC and to the public confused or likely to be
6 confused by Defendants’ use of the name Glory to identify Staccato®, unless restrained
7 and enjoined by this Court. AAFC has no adequate remedy at law to prevent
8 Defendants from continuing its actions and from injuring AAFC. AAFC seeks
9 injunctive relief as set forth above.
10 76. As a further direct and proximate result of Defendants’ actions, AAFC has
11 been damaged in an amount to be proven at trial, and for all expenses necessary to
12 minimize and/or prevent customer confusion, and all other and further forms of relief
13 this Court deems appropriate.
14 FIFTH CAUSE OF ACTION: FALSE ADVERTISING UNDER THE LANHAM
15 ACT (15 U.S.C. § 1125(A)(1)(B)) AGAINST DEFENDANTS
18 78. On information and belief, Defendants have caused goods to enter into
19 interstate commerce with the misleading, deceptive and false use of the name “Glory”
20 to identify the trademarked Staccato® trees and/or fruit. Defendants have made
21 literally false and misleading statements of fact with respect to its marketing,
22 advertisement and sale of Glory trees and/or fruit because Glory is actually the
23 trademarked Staccato®.
24 79. On information and belief, such misleading, deceptive and false use of the
25 name “Glory” has actually deceived and/or has a tendency to deceive growers,
26 nurseries, distributors, retailers, consumers and/or the general public into believing,
COMPLAINT - 17 -
1 among other things, that Glory is different than Staccato®.

2 80. Defendants’ misleading, deceptive and false statements that the fruit
3 and/or trees are “Glory” are material.
4 81. Defendants’ misleading, deceptive and false use of “Glory” in its
5 marketing and sales misrepresents the source of its product, constituting false
6 advertising that deprives AAFC of the trademarked Staccato®’s advertising value and
7 goodwill that otherwise would stem from public knowledge of the true source of the
8 product.
9 82. AAFC has been damaged by Defendants’ false and misleading statements
10 and, unless this conduct is enjoined, AAFC’s goodwill and reputation will continue to
11 suffer irreparable injury that cannot adequately be calculated or compensated by
12 monetary damages.
13 SIXTH CAUSE OF ACTION: CONVERSION AGAINST ALL DEFENDANTS
16 84. AAFC is, and at all relevant times was, the rightful owner of each
17 Staccato® tree, cutting and/or Staccato® budwood that was grafted, planted or
18 propagated by Defendant Van Well beginning in approximately 1990 and later at
19 Defendant Goodwin’s and Monson’s, including the owner of any sports, mutations of
20 Staccato®. Defendants are exercising dominion and control over the Staccato plants®.
21 AAFC also owns the intellectual property and the intellectual property rights of W.
22 David Lane, including, the right to any patent based on his intellectual property.
23 85. On information and belief, Defendant Van Well inadvertently and without
24 consent or authorization from Plaintiff or SVC provided Staccato® to Defendant
25 Goodwin. On information and belief, Defendant Goodwin continues to intentionally
26 and without consent or authorization possess, graft, propagate, plant or sell Glory trees.
COMPLAINT - 18 -
1 Defendants Van Well and Goodwin have refused to destroy or otherwise cease and
2 desist from possessing, and propagating Glory. Defendants actions interfere with
3 AAFC’s rights to control the plants it owns and the commercial uses made of them.
4 86. On information and belief, Defendant Van Well and Defendant Goodwin
5 without consent or authorization from Plaintiff or SVC provided Staccato® to
6 Defendant Monson. On information and belief, Defendant Monson continues to
7 intentionally and without consent or authorization possess, graft, propagate, plant and
8 sell Glory trees and/or their fruit. Defendants’ actions interfere with AAFC’s rights to
9 control the plants it owns and the commercial uses made of them.
10 87. Defendants Goodwin have also wrongfully exercised dominion over the
11 AAFC’s intellectual property either by claiming rights to the Glory ‘693 Patent, by
12 accepting assignment of rights under the ‘693 Patent, by licensing those rights, and by
13 failing to name W. David Lane as the sole inventor of the ‘693 Patent.
14 88. Plaintiff did not consent to this conversion and has been injured through
15 the improper and unauthorized use of its property, in an amount to be proven at trial.
16 Moreover, on information and belief, Defendants’ conduct was a substantial factor in
17 causing Plaintiff’s harm. AAFC is also entitled to the return of all rights and interest in
18 any Glory trees and intellectual property which Defendants have wrongfully converted.
19 SEVENTH CAUSE OF ACTION: TORTIOUS INTERFERENCE WITH
20 ECONOMIC RELATIONS AGAINST DEFENDANTS
23 90. By acquiring, propagating and selling the Glory cherry tree without a
24 license and without authorization, Defendants knowingly and intentionally interfered
25 with prospective economic relationships between Plaintiff AAFC and SVC, thereby
26 depriving AAFC of the economic benefits in the form of lost royalties.
COMPLAINT - 19 -
1 91. On information and belief, Defendants knew of the business relationships

2 between Plaintiff AAFC and SVC, yet Defendants continued to improperly interfere
3 with these business relationships by growing and selling Glory trees and/or their fruit
4 without Plaintiff’s authorization.
5 92. Defendants’ conduct was a proximate cause of damages to Plaintiff.
6 93. Unless Defendants are enjoined by this Court, they will continue to
7 interfere with the business relationships between AAFC and SVC.
8 EIGHTH CAUSE OF ACTION: UNFAIR COMPETITION AGAINST
9 DEFENDANTS
12 95. As explained in detail above, Defendants have engaged in unfair acts and
13 competition in violation of Washington state law under RCW 19.86.020, Washington’s
14 Consumer Protection Act, by marketing and selling Glory trees and/or their fruit
15 without license or authorization and without properly identifying them as Staccato®, in
16 competition with Plaintiff.
17 96. As explained above, Defendant Goodwin has represented and continues to
18 represent to the public that he invented and owns the Glory variety and patent even
19 though it is AAFC’s Staccato®. In doing so, Defendant Goodwin is passing off
20 AAFC’s intellectual property as its own in violation of Washington state law. On
21 information and belief, Defendant Goodwins’ wrongful passing off of AAFC’s
22 intellectual property as their own has caused, and will cause, customer confusion, and
23 has been a substantial factor in directly and proximately causing damages and
24 irreparable harm to AAFC.
25 97. Plaintiff seeks damages, including treble damages, sufficient to
26 compensate Plaintiff for its actual losses including, lost profits resulting from
COMPLAINT - 20 -
1 Defendants’ unfair competition, and to recover any unjust enrichment resulting from
2 their unfair competition.
3 DEMAND FOR A JURY TRIAL
4 98. Plaintiff respectfully requests a jury trial in this action on all issues so
5 triable.
6 PRAYER FOR RELIEF
7 Based on the foregoing, Plaintiff prays for the following relief against
8 Defendants:
9 1. Judgment in Plaintiff’s favor against Defendants on all causes of action
10 alleged herein;
11 2. A preliminary and permanent injunction to enjoin Defendants, their agents,
12 servants, employees, attorneys, successors and assigns, and all persons, firms, and
13 corporations acting in concert with them, including distributors, customers, from
14 growing, using, offering for sale, selling, reproducing, propagating, exchanging,
15 transferring, or possessing the Glory cherry trees claimed in the ’551 Staccato Patent
16 and the cuttings, budwood, and fruit thereof without lawful authorization;
17 3. An injunction against Defendants directing the removal and destruction of
18 all Glory and unauthorized Staccato® trees, cuttings, budwood and fruit;
19 4. An order declaring AAFC owns the Glory trees, cuttings and budwood that
20 are in Defendants’ possession or control;
21 5. An order directing the Director of the USPTO to correct inventorship of
22 the Glory ’693 Patent by removing Gordon Goodwin as an inventor and naming W.
23 David Lane as inventor, pursuant to 35 U.S.C. § 256;
24 6. Order Goodwin Defendants to assign right, title and ownership of the
25 Glory ’693 Patent to AAFC;
26 7. Order Defendants to pay Plaintiff compensatory damages based on
COMPLAINT - 21 -
1 evidence submitted at trial with interest at the highest rate allowable by law;
2 8. Order Defendants to pay Plaintiff consequential, exemplary, and actual
3 damages or disgorgement of Defendants’ profits unjustly obtained based on competent
4 and admissible evidence at trial with interest at the highest rate allowable by law;
5 9. Order Defendants to pay Plaintiff enhanced damages;
6 10. Order Defendants to pay Plaintiff’s reasonable attorneys’ fees and
7 allowable court costs and expenses; and
8 11. Order all other such relief to Plaintiff under law and equity as the Court
9 deems just and proper.
10 DATED this 18th day of May, 2020.
11
12 /s/ Daniel W. Short .

Daniel W. Short, WSBA #7945
13
PAINE HAMBLEN LLP
14 717 West Sprague Avenue, #1200
Spokane, Washington 99201
15 Tel: (509) 455-6000
16 Fax: (509) 838-0007
dan.short@painehamblen.com
17
18 Jennifer D. Bennett (pro hac vice

forthcoming)
19
DENTONS US LLP
20 One Market Plaza
Spear Tower, 24th Floor
21 San Francisco, CA 94105
22 Tel: (415) 267-4000
Fax: (415) 267-4198
23 jennifer.bennett@dentons.com
24
Attorneys for Plaintiff
25
26
COMPLAINT - 22 -
Case 2:20-cv-00181 ECF No. 1-1 filed 05/18/20 PageID.23 Page 1 of 10
Exhibit A
US00PP20551P3 US00PP20551P3
(12) United States Plant Patent ao) Patent no.: US PP20,551 P3

Lane (45) Date of Patent: Dec. 15, 2009
(54) CHERRY TREE NAMED '13S2009' (58) Field of Classification Search Plt./l 81
See application file for complete search history.
(50) Latin Name: Prunus avium
Varietal Denomination: 13S2009 (56) References Cited
PUBLICATIONS
(75) Inventor: W. David Lane, Summerland (CA)
UPOV hit '13S2009', UPOV-rom Plant Variety Database,
(73) Assignee: Her Majesty the Queen in right of Mar. 2003.*
Canada, as represented by the Manual of Patent Examining Procedure (MPEP) pp. 700/
Minister of Agriculture and Agri-Food 234 to 700/243. USPTO Aug. 2006.*
Canada, Summerland (CA)
* cited by examiner
( * ) Notice: Subject to any disclaimer, the term of this
Primary Examiner—Annette H Para
patent is extended or adjusted under 35
(74) Attorney, Agent, or Firm—Penny J. Aguirre
U.S.C. 154(b) by 763 days.
(57) ABSTRACT
(21) Appl.No.: 10/379,714
A new and distinct variety of cherry tree named '13S2009'
with the following characteristics. '13S2009' has large
(22) Filed: Mar. 6, 2003 flattened-heart shaped fruit, with shiny, dark red skin and red
to dark red flesh. The fruit has a non-prominent suture and a
flat to slightly hollow apex. The fruit matures very late in the
(65) Prior Publication Data
harvest season, about 27 days after 'Van' and 'Bing' and 8
US 2004/0045061 PI Mar. 4, 2004 days after 'Sweetheart'. The flesh of the fruit is very firm,
and has a moderately sweet taste. The fruit are tolerant to
Related U.S. Application Data
rain splitting. The stone of '13S20-09' is intermediate in
(60) Provisional application No. 60/363,547, filed on Mar. 13,
lateral view, laige in size, and has strongly developed keel.
2002.
The tree is upright to spreading, self-compatible, moderately
(51) Int. CI. vigorous and has produced good, crops annually since fruit
A01H 5/00 (2006.01) ing commenced.
(52) U.S. CI. Plt./181 3 Drawing Sheets
1 2
Botanical classification: Prunus avium. advantage of niche markets; 2) to improve environmental
Variety denomination: '13S2009'. adaptation to major fruit growing areas, for consistent pro
duction of high quality fruit; 3) to reduce the cost of produc
BACKGROUND OF THE INVENTION tion. The varieties are evaluated for the following traits to
insure that the objectives are met. Primary traits include:
This invention relates to cherry trees and particularly to a early onset of bearing, self-compatibility, extended ripening
seedling cherry tree from an open pollination selected by Dr. season, fruit size, fruit firmness, and resistance to rain-
W. David Lane of the Pacific Agri-Food Research Centre induced cracking. Secondary traits include: disease
Summerland cherry breeding program located at resistance, winter hardiness, resistance to spring frosts, and
Summerland, British Columbia, Canada. '13S2009' is a compact tree growth habit.
10
fruiting sweet cherry tree and has a market use as a dessert Upon fruiting, the seedlings are evaluated for fruit and
quality cherry. tree quality. Time of bloom, harvest indices, disease suscep
tibility and growth habit are evaluated in the field. Promising
The Agriculture and Agri-Food Canada research facility at
seedlings are re-propagated by budding or grafting onto
Summerland was established in 1914. Originally called the
rootstocks, and planted out as second test selections in vari
Dominion Experimental Farm at Summerland, the name was 15
ety evaluation plots. The reproductions are evaluated for
changed to the Summerland Research Station in 1959, the
varietal stability, disease susceptibility, and fruit and tree
Summerland Research Centre in 1994 and to the Pacific
quality. The new varieties are compared to reference variet
Agri-Food Research Centre (PARC) Summerland in 1996.
ies to establish uniqueness.
The tree fruit breeding program was established in 1924 to
The present invention relates to a new and distinct variety
provide new varieties for the tree fruit industry of British 20
of cherry tree which was named '13S2009' in 2000. The
Columbia, Canada, and the world. The breeding program at
original seedling was produced in 1 982 and is the offspring
Summerland has produced several tree fruit varieties includ-
of the seed parent 'Sweetheart' and an unknown pollen par
ing 'Spartan' (unpatented), 'Silken' (U.S. Plant Pat. No.
ent. The variety was planted out as a seedling in 1984 and
10,740), and 'Creston' (U.S. Plant Pat. No. 10,739) apples
given the Breeders Reference Number '13S-20-09' in 1991
and 'Van' (unpatented), 'Lapins' (unpatented), and 'Sweet
25 and named "13S2009" in 2000.
heart' (unpatented) sweet cherries. The tree fruit breeders
typically produce several thousand seedlings each year. History of the Invention
The three broad objectives of the cherry breeding program The present invention relates to a new and distinct variety
are: 1) to diversify the product to allow growers to take of cherry tree which was named '13S2009' in 2000. The
US PP20,551 P3
3 4
original cross happened in 1982 and was discovered by Dr. son maturity can help growers avoid the oversupply of cher
W. David Lane the same year. Seeds from the variety ries on the market that can happen during the peak cherry
'Sweetheart' were gathered at fruit maturity, isolated from harvest season. The oversupply drives the price of cherries
seeds from other crosses. The seeds were subjected to the down, and in turn reduces the financial return to the grower.
required moist chilling treatment (stratification) to enable '13S2009' produces fruit of very high quality, being large
the seeds to break dormancy in the fall of 1983. After the with very firm flesh and having moderately glossy, red to
required stratification the seeds were germinated in a green dark red skin. The color and glossiness of the skin are very
house. The resulting seedlings were transplanted into pots attractive when packed in a box and the firm flesh appeals to
and grown in a greenhouse in the spring of 1984. The seed consumers and buyers. The advantage to the grower of pro
lings were taken from the greenhouse in May 1984 and ducing '13S2009' is the lateness of fruit maturity, the visual
planted in the seedling orchards at the PARC Summerland. appeal of the fruit, tolerance to rain-induced cracking, and
A particular seedling was planted at tree position 9 in row 20 the self-compatibility of the tree. Self-compatibility elimi
in a field designated 13 South. The seedling subsequently nates the need for pollinizer varieties and reliance on insect
fruited and observations determined the fruit had unique pollination for fruit set. Self-compatible varieties tend to
qualities of possible commercial potential. The seedling was produce heavier crops than self-incompatible varieties, espe
given the Breeders Reference Number 13S-20-09 in 1991. cially during years with pool pollination weather. Poor polli
Four trees were created by T-budding vegetative buds of nation can be the result of cold, wet and/or windy conditions
13S-20-09 onto P. avium ('Mazzard' (unpatented)) rootstock during the blossom period. These types of conditions restrict
in August of 1990. 'Mazzard' is the cherry rootstock of the movement of insects, most notably bees, and can result
choice of most growers and nurseries in British Columbia. in low fruit set and non-profitable crops.
The stock creates full-sized trees but induces earlier fruiting The fruit of '13S2009' is flattened heart-shaped and is
with most cultivars. The resulting trees were grown in a borne on long, moderately thick stems. The fruit at maturity
nursery, then dug up in the fall of 1991 and stored in cold has red to dark red colored skin with moderate glossiness,
storage over winter. In the spring of 1992 the trees were red flesh, and a sweet taste. The fruits are very large, have
removed from cold storage and planted in a field designated very firm flesh and are resistant to rain-induced cracking.
4C. The resulting trees were stable in their horticultural traits The fruit has a low prominence of suture. The stone of
and no off-types or variants occurred during the ' 13S2009' is laige in absolute size, although medium in size
re-propagation of the instant plant. To determine fertility of relative to the size of the fruit. The stone is symmetrical and
the variety, blossoms of 13S-20-09 ('13S2009') were hand the shape is intermediate in the lateral view, round elliptic in
pollinated with pollen collected from other blossoms of the basal view and elliptic in the frontal view. The keel is
'13S2009' and/or other known self-compatible varieties. strongly developed.
The blossoms were covered with bags to inhibit pollination
The leaves of ' 13S2009' have weak to medium glossiness
by bees, fruit developed normally and it can be assumed with
on the upper side, are broad elongate in shape and have
confidence that ' 13S2009' is self-compatible and pollination
moderately shallow, dentate serrations on the leaf margins.
from other sources is not required. The hand pollination and
The leaves are oriented obliquely upwards to horizontal in
resulting determination that the variety was self-compatible
relation to the shoot and have cuspidate to acuminate tips
also determines that the variety carries the S4' (S4 prime)
and circular shaped bases. The petioles are medium in
allele. Polymerase chain reaction (PCR) research has deter
length, have anthocyanin coloration, and average more than
mined the variety also carries the S3 allele so the compatibil
2, purple/red, round shaped nectaries at the base.
ity group, while self-compatible, is also S3S4'.
'13S2009' flowers about the middle of the blossom
Controlled grower trials, under test agreements, have been
season, similar to 'Bing'. The flowers are self-compatible.
established in British Columbia, selected sites in the United
The flowers are white, large in size, single in type, and
States, and in Europe.
appear in clusters. The pedicels are long and moderately
thick. The petals are medium in size, broad elliptic to round
Stability and Propagation
in shape and free to touching.
In 1 99 1 , under the direction of Lane, T-budding of vegeta The tree of '13S2009' is of moderate vigor and hardy to
tive buds from the original plant of 13S-20-09 on Mazzard Zone 6A. The tree habit is upright to spreading. The tree is
rootstock created new trees. The asexual propagation took precocious, and very productive, and has produced good
place in Summerland, British Columbia, Canada. The result crops annually since first fruiting. The one-year-old dormant
ing trees were stable and no variations occurred. Subsequent shoots show weak anthocyanin coloration and are of
propagations have produced trees that are also stable, true- medium diameter at the middle of the shoot. On the average
to-type and identical to the original tree in all the horticul the internodes are medium in length and average a few to a
tural traits. medium number of small lenticels. The buds on the one-
year-old dormant shoots are large in size, conical in shape
Distinguishing Characteristics and are moderately held out in relation to the shoot. The bud
support is medium in diameter.
Under growing conditions at the Pacific Agri-Food
Research Centre (PARC) Summerland located at Summer- Parent Plants
land in the Okanagan Valley of British Columbia, Canada,
the variety '13S2009' consistently has the following charac '13S2009' a seedling resulting from an open pollination
teristics that distinguish it from other cherry varieties. The of the flower of the seed parent 'Sweetheart' by an unknown
variety is self-compatible and the fruit matures, on average, pollen parent.
significantly later than any other commercial cherry variety. 'Sweetheart' is a result of a controlled cross of the seed
This is the variety's most distinguishing characteristic. This parent 'Van' and the pollen parent 'Newstar' (unpatented)
very late fruit maturity extends the cherry harvest season and made at the Pacific Agri-Food Research Centre in 1975. The
gives a distinct financial advantage to growers. The late sea- seedling of 'Sweetheart' tree first fruited in 1982 and contin-
US PP20,551 P3
5 6
ues to produce good crops annually. 'Sweetheart' became was compared to the reference varieties 'Van', 'Sumleta'
commercially available in the spring of 1994. (U.S. Plant Pat. No. 11,378), 'Lapins', 'Skeena' (U.S. Plant
Pat. No. 11,392), and 'Sweetheart' of approximately the
Seed parent: same age and planted in the same area. ('Van' was used as
Name. —' Sweetheart' . comparator to establish harvest timing only). Controlled
Species. —avium L. grower trials, under test agreements, have been established
Market class. —Sweet dessert. in British Columbia, selected sites in the United States and
Parentage. —' Van' x'Newstar' . Europe.
Pollen parent:
'13S2009' was evaluated for fruit size, fruit firmness,
Name. —Unknown.
maturity date, fruit taste (soluble solids and titratable acids),
Genus. —Prunus.
natural rain splits, tree growth habit, fruit shape,
Species. —avium L.
productivity, precocity and disease resistance from 1989
Market class. —Unknown.
until the present.
SUMMARY OF THE INVENTION Under growing conditions at the Pacific Agri-Food

Research Centre (PARC) Summerland located at Summer-
The new and distinct variety of Prunus avium L. fruiting
land in the Okanagan Valley of British Columbia, Canada,
cherry tree, '13S2009', resulted from open pollination of a the variety '13S2009' consistently has the following charac
'Sweetheart' blossom that happened in 1982 at the Pacific
teristics. '13S2009' matures on average 26 to 28 days after
Agri-Food Research Centre in Summerland, British 'Van' and 7 to 9 days after 'Sweetheart'. 'Van' fruit mature
Columbia, Canada. The seed was stratified by conventional
on average about the 8th to 10th of July in Summerland.
methods and germinated in a greenhouse, and the resulting
Gibberellic acid was not applied to the crop. Gibberellic acid
seedling tree was established in a seedling block in 1984. can delay the maturity of the fruit by up to five days.
The seedling tree was selected for further propagation and
evaluation on the basis of fruit and tree quality and the very
late timing of fruit maturity, by Dr. W David Lane and given
the Breeder's Reference Number '13S-20-09' in 1991. The Days
variety has been established in a second selection block at After Van Variety Name
the Pacific Agri-Food Research Centre Summerland. Evalu

Year Van Sumleta Lapins Skeena Sweetheart 13S2009
ations began upon fruiting.
1982 0 8
The variety has been propagated, by budding onto root-
1983 0 9 7
stocks under the direction of Dr. W. David Lane. The result 1984 0 4 11 11
ing trees have proved to be stable with no variations occur 1985 0 -3 12 10
ring. The variety demonstrates significant differences from 1987 0 16 16 16 35

1988 0 3 1
its parents and other fruiting cherry varieties in that the fruit
1989 0 0 12 14
of '13S2009' matures very late in the cherry harvest season, 1990 0 7 4 7 15 29
is large and very firm. The skin of '13S2009' is red to dark 1991 0 13 23 9 23 22
red in color and of moderate glossiness with a few light 1992 0 10 14 14

1994 0 -4 14 0
colored highlights (dots). The flesh is dark red. The fruit is
1995 0 7 8 21 21 30
sweet (19.7% soluble solids) with a balance of sweet/sour 1996 0 11 6 6 36 26
1 .60% SSC/mg NaOH). The fruit has low susceptibility to 1997 0 8 8 8 32 32
rain-induced cracking (20% natural rain splits). The stone is 1998 0 9 29

1999 0 14 13 14 13 23
symmetrical and the shape is intermediate in the lateral view,
2000 0 16 7 13 16 27
round elliptic in the basal view and elliptic in the frontal
view. The keel of the stone is strongly developed. 98 151 128 241 218
Average 8 10 11 19 27
The tree habit is upright/ spreading, and moderately vigor
days past Van
ous. The variety was first propagated in 1991 by budding on
Mazzard F12/1 rootstock was established in a second selec- 'Van' is harvested about the 8th to 10th of July at Summerland
tion field at the Pacific Agri-Food Research Centre at

Summerland, British Columbia, Canada in 1993. The fruit of The variety has an average fruit weight of 1 1.4 g, similar
' 13S2009' matures 26 to 28 days after 'Van' and 7 to 9 days to 'Lapins' (11.7 g) and 'Skeena' (11.5 g), significantly
after 'Sweetheart'. '13S2009' fruit is flattened heart shaped, larger than 'Sweetheart' (10.1 g), and significantly smaller
has a slightly flattened to very slightly hollow apex, and a 'Sumleta' (13.1 g). 'Lapins', 'Sumleta' and 'Skeena' are
non-prominent suture. considered to have large fruit, 'Sweetheart' is considered to
have moderately laige fruit.
Trials and Evaluations
The Pacific Agri-Food Research Centre Summerland,

located at latitude 49.6 degrees north and longitude 119.6 Average Variety
degrees west, and about 100 feet above Okanogan Lake at an fruit weight Name
elevation of approximately 1100 feet above sea level. The

Year Sumleta Lapins Skeena Sweetheart 13S2009
Plant Hardiness Zone is 6A. The average annual precipita
tion is about 28 cm (1 1 inches). The soil types range from 1991 12.9 12.4 12.6 11.0 12.2
sandy loam to clay. All orchards in this area require irriga 1993 13.4 12.1 11.3 9.9 11.8
1995 13.7 11.9 12.1 10.0 11.3
tion and fertilization.
1996 12.6 9.8 10.8 10.4 11.4
Test plots established at PARC Summerland consisting of 1997 12.2 11.1 9.8 8.1 11.3
4 trees of '13S2009' were established in 1993. The variety

US PP20,551 P3
7 8
-continued -continued
Average Variety Variety

fruit weight Name Name
Year Sumleta Lapins Skeena Sweetheart 13S2009 Year Sumleta Lapins Skeena Sweetheart 13S2009
1999 12.8 12.2 11.5 11.0 11.2 Titratable

2000 14.4 12.0 12.5 10.1 10.8 Acidity
Total 91.9 81.6 80.6 70.4 80.0 1995 14.17 13.52 8.39 12.73 12.06
Average 13.1 11.7 11.5 10.1 11.4 1996 15.93 13.94 12.25 12.13 11.41
over 7 years 1997 12.41 12.58 8.34 10.77 9.72
1999 16.4 14.8 11.3 15.4 14.5
2000 15.75 14.15 10.95 13.1 14.25
The flesh is significantly firmer than 'Lapins', slightly

Total 74.66 68.99 51.23 64.13 61.94
firmer than 'Sumleta', and as firm as 'Sweetheart' and
Average 14.932 13.798 10.246 12.826 12.388
'Skeena'. Over 5 years, '13S2009', 'Skeena', and 'Sweet SSC/TA
heart' had a mean rating of 81 in firmness as measured by Balance
Shores Durometer, whereas 'Sumleta' averages 79 and 'Lap

1995 1.60 1.55 2.12 1.63 1.77
ins' 76. 'Sweetheart' is considered to be a very firm variety
1996 1.12 1.28 1.41 1.57 1.72
by commercial growers. Gibberellic acid was not applied to 1997 1.63 1.74 1.99 1.80 1.94
any of these test samples. In commercial plantings, gibberel 1999 1.28 1.42 1.73 1.42 1.40
lic acid is used to improve the firmness and delay the matu 2000 1.23 1.24 1.42 1.44 1.30
rity of cherry fruit.

Total 1.35 1.44 1.69 1.56 1.59
SSC/Total TA
Variety ' 1 3 S2009 ' has a significantly lower tendency to crack due
Flesh Firmness name to rain than most other varieties. 'Lapins' is considered to be
highly tolerant of rain-induced cracking. Rain-induced
cracking is difficult to reproduce annually, as it is dependent
1995 79 78 82 83 85 on the weather during the latter part of the fruit maturation
1996 85 83 85 79 80 period. 'Sweetheart' for example is very susceptible to rain-
1997 80 76 77 84 83
induced cracking, but over a 7 year period it appears to have
1999 76 72 80 79 76
2000 75 72 81 79 80
about the same resistance as 'Lapins'. However from obser
vation and grower comments it has been established that
Total 395 381 405 404 404 '13S2009', 'Lapins', and 'Skeena' are much less prone to
5 year Average 79 76 81 81 81
rain-induced cracking than are 'Sweetheart' and 'Sumleta'.
This could be a reflection of the area where the cherries are
grown. The Okanagan Valley of British Columbia receives a
The fruit of '13S2009' on average has a high soluble sol
ids concentration (SSC) similar to 'Sumleta', 'Skeena', and total yearly average of about 28 cm (11 inches) of
precipitation, with June typically receiving the most rain
'Sweetheart' and significantly higher than 'Lapins'.
'13S2009' has a moderate amount of titratable acid (TA), during the summer months. As the late season cherries do
not mature until late July or after, they are past the heavy rain
similarto 'Skeena' and 'Sweetheart', significantly more than
'Lapins' and significantly less than 'Sumleta'. The balance periods and are subject only to short storm periods after
between SSC and TA in '13S2009' gives the fruit a sweet turning from straw color to red. Cherries split more after
turning red. The same observations and comments indicate
taste. The SSC/TA balance does reflect the sensory percep
tion of sweetness in the fruit. For example 'Sumleta' has a '13S2009' is more tolerant to cracking than 'Lapins' and
'Skeen'.
lower ratio than the others, reflecting a more acidic taste.
This is consistent with human perception of the taste even
though 'Sumleta' has higher soluble solids than most other
dark or red cherries.
% Rain induced Variety
Cracking Name

Variety
1991 35 21 23 20 15
Name
1993 55 44 18 30 9
Year Sumleta Lapins Skeena Sweetheart 13S2009 1995 34 7 25 26 14

1996 33 26 28 49 27
Soluble Solids 1997 61 38 32 48 32
1999 23 25 22 7 26
1995 22.7 20.9 17.8 20.7 21.3 2000 51 22 15 24 16
1996 17.9 17.9 17.3 19.1 19.6
1997 20.2 21.9 16.6 19.4 18.9 Average % R.I.C. 291 183 163 204 139
1999 21 21 19.6 21.9 20.3 Total 42 26 23 29 20

2000 19.3 17.6 15.5 18.9 18.5 Average
Total 101.1 99.3 86.8 100 98.6

Average 20.22 19.86 17.36 20 19.72 The tree of '13S2009' is upright to somewhat spreading
and has moderate vigor similar to 'Sweetheart' and unlike
US PP20,551 P3
9 10
'Lapins' which is very upright and very vigorous. The tree of F12/1 for rootstock. The color determination is in accor
'13S2009' requires much less effort to produce a well- dance with the R.H.S. Colour Chart of The Royal Horticul
balanced tree than most commercial cultivars. The one-year- tural Society, London, England, except where general color
shoots are moderately horizontal in relation to the tree, simi terms of ordinary dictionary significance are used.
lar to 'Sweetheart'. This branching habit is conducive to
flower bud initiation and high fruit set and yield. The tree Fruit end use: Dessert.
produces lateral branches readily after heading at planting. Group: Sweet dark.
Dormant pruning is required to remove upright shoots for Growth characteristics: (Observations are measurements
improved penetration of sunlight and pesticide sprays, and to from 6-year-old bearing trees).
renew fruiting wood. Other manipulations, such as hormone Tree vigor. —Moderate.
application or scoring, to encourage branching are unneces Tree height. —5 meters.
rd
sary. Higher quality cherries are produced on 2"rf and 3 Tree width. —4 meters.
year wood, therefore branch renewal is vital. ' 13S2009' pro Growth habit. —Upright to spreading.
duces very heavy crops annually and may require thinning Branch pubescence. —Absent or very weak.
by hand of blossoms or fruit, or by pruning off parts off Bearing. —Annual and regular.
fruiting areas of limbs to reduce the crop load and maintain Shoot characteristics: (Observations from 10 one-year-old
large fruit size. dormant shoots).
'13S2009' has been propagated by budding onto Colt Shoot attitude. —Slightly horizontal.
(U.S. Plant Pat. No. 4,059 expired), Mazzard (unpatented), Vegetative bud size. —Large. Mean: 7.06 mm. Range:
Mazzard F12/1 (unpatented), Mahaleb (unpatented), and 1.56 mm.
Gisela 5 (U.S. Plant Pat. No. 9,622) rootstocks with no Bud support width. —Medium. Mean: 3.57 mm. Range:
unusual or unique occurrences that set it apart from other 1.17 mm.
varieties. It is graft compatible with all these rootstocks pro Wood bud shape. —Conical.
vided that virus-certified propagation wood is used. Position of bud. —Moderately held out from the shoot.
Number of lenticels. —Medium (71 per 12 cm from
Virus Status and Disease Susceptibility/Resistance middle of the shoot).
Shoot diameter {middle of internode). —Mean: 6.14
Wood of '13S2009' has been virus indexed at the Centre
mm. Range: 1 .43 mm.
for Plant Health at Sidney B.C., Canada. Virus-certified trees
Internode length {middle ofshoot).—Mean: 35.02 mm.
have been made and established and are being maintained at
Range: 32.85 mm.
the okanagan Plant Improvement Company's certified bud
Anthocyanin coloration {shoot tip). —Weak.
wood orchard at Summerland, B.C., Canada.
Bark coloration 1st year wood. — 165A (RHS) (at
'13S2009' has shown neither unusual susceptibility nor dormant).
resistance to any plant or fruit pests and/or diseases com Bark coloration mature branch. — 177A (RHS) (at
pared to other cultivars. dormant).
Bark coloration trunk. — 177A (RHS) (at dormant).
BRIEF DESCRIPTIONS OF THE DRAWINGS Leaf characteristics: (Measurements are the mean of 10
leaves).
The accompanying photographs show various characteris
Bud burst in relation to fullflowering. —Much earlier.
tics of the cherry variety ' 13S2009'. The colors of the photo
Attitude to shoot. —Horizontal to slightly obliquely
graphs are as nearly true as is possible in a color representa
upwards.
tion of this type.
Leafshape. —Broad elongate.
In FIG. 1, a typical tree is shown. The photograph shows Angle at blade tip. —Acute to almost right angle.
the growth habit a typical tree, approximately 7 years years Shape ofbase. —Rounded.
old, slightly before optimum maturity of the fruit. Shape ofapex. —Cuspidate to acuminate.
In FIG. 2, a typical branch at blossom is shown. The pho Leaf blade profile shape. —Slightly concave.
tograph displays the blossoms of '13S2009' at about full Leaf color {adaxial). —Medium green 137A (RHS).
bloom. Leaf color (abaxial). — 137C (RHS).
FIG. 3 shows a typical branch with fruit somewhat prior to Anthocyanin upper side. —Absent.
Anthocyanin {leafglands).— 187B (RHS).
harvest. The photograph illustrates the cluster of fruit and
the leaves of the variety. Glossiness. —Weak to medium.
Margin indentation. —Dentate.
FIG. 4 comprises view of the mature fruit of ' 13S2009' in
Degree of indentation. —Shallow.
large scale. The fruit is arranged to display the blossom end
Leaf blade length. —Mean: 176.33 mm. Range: 51.0
(top) and the side view (middle left) of the fruit. These views
mm.
show the color of the fruit at maturity in the middle right the
Leaf blade width. —Mean: 79.8 mm. Range: 22 mm.
fruit is displayed in cross section after being cut centrally
Blade ratio. —Length/width: 2.11.
across the midline. The flesh color and the arrangement of
Petiole length. —Mean: 39.87 mm. Range: 15 mm.
the flesh in relation to the stone is displayed.
Petiole to leafblade ratio {length).—4.47.
In FIG. 5, various views of the stone are displayed of the
Petiole anthocyanin. —71 A (RHS).
fruit, after drying and the flesh is removed. The basal, lateral
Number ofnectaries {out of 1 0).—More than 2.
and front views are displayed as well as views of the keel.
Nectaries color. —Purple red 60A (RHS).
Nectaries shape. —Round to reniform.
DETAILED BOTANICAL DESCRIPTION
Nectaries position. —Predominately occur alternately
The following is a detailed description of '13S2009'. All positioned located on the stem, rarely positioned
trees are of approximately the same age and have Mazzard oppositely.
US PP20,551 P3
11 12
Flower characteristics: (Measurements are the mean of 10 Fruit apex. —Flat to very slightly hollow.
flowers). Color offlesh. —Dark red 187B (RHS).
Bloom period. —Middle of bloom season. Color ofskin.— Wine Red 187A (RHS).
Flower appearance. —In clusters. Dots on skin. —Few (medium in size).
Flowers per cluster. — 10 to 12. Glossiness. —Average.
Duration ofbloom. —7 to 10 days. Firmness of flesh. —Very firm (81 by Shores
Flowering density. —Medium. Durometer).
Flower type. —Single, perfect, complete, perigynous. Rain induced cracking. —Low (20%).
Flower color. —White. Fruit taste. —Sweet.
Flower size {diameter of corolla).—Mean: 41.5 mm. Soluble sold concentration. — 19.7% (over 5 years).
Range: 7.0 mm. Titratable acids (mg NaOFL).— 12.4 (over 5 years).
Pedicel length. —Mean: 33.3 mm. Range: 17.0 mm. SSC/TA balance. — 1.59 (over 5 years).
Pedicel thickness. —Mean: 1.09 mm. Range: 0.11 mm. Juice color. —Dark red 187A (RHS).
Pedicel pubescence. —Absent or very weak. Fruitjuiciness. —Medium.
Petal size {length). —Mean: 18.50 mm. Range: 2.0 mm. Length ofstalk. —Mean: 52.13 mm. Range: 16.0 mm.
Petal size {width). —Mean: 15.80 mm. Range: 2.00 Stalk thickness. —Mean: 1.01 mm. Range: 0.43 mm.
mm. Adherence offlesh to stone. —Slightly adherent.
Petal shape. —Broad elliptic to slightly round. Stone color. — 159A (RHS).
Petal position of margins. —Touching. Stone size {length). —Large. Mean: 11.5 mm. Range:
Petal color. —White 155D (RHS). 1.97 mm.
Anther color {at dehiscence). —Yellow/green 153B Stone size {dia.). —Mean: 10.47 mm. Range: 2.09 mm.
(RHS). Stone size relative to fruit. —Medium.
Frequency ofsupplementary pistil. —Absent. Shape in lateral view. —Intermediate.
Pistil presence. —Normal Pistil. Stone shape front view. —Elliptic.
Ovary pubescence. —Absent. Stone shape in basal view. —Round elliptic.
Fruit characteristics: (Measurements are the means from a Stone symmetry in lateral view. —Symmetrical.
10-fruit sample). Stone keel development. —Strongly developed.
Maturity date. —Very Late (average 1st week August at Compatibility. —Self-compatible.
Summerland, 27 days after 'Van' at Summerland). Precocity of bearing. —Intermediate to high.
Weight {average).— 1 1 .4 g (50 fruit sample). Fruit set {yield efficiency). —Very high.
Large diameter. —Mean: 29.50 mm. Range: 3.30 mm. Storage. —2 weeks at 0C (slightly less than 'Bing').
Fruit length. —Mean: 25.7 mm. Range: 2.97 mm. Storage. —4 weeks in Modified Atmosphere packing
Shape. —Flattened Heart. (MAP).
Profile in lateral view. —Flattened. It is claimed:
Symmetry offruit. —Symetrical. 1. A new and distinct variety of sweet cherry tree named
Position of largest diameter. —Towards the middle. '13S2009' substantially as herein illustrated and described.
Suture. —Low.
U.S. Patent Dec. 15, 2009 Sheet 1 of 3 US PP20,551 P3
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Exhibit B
Int. CI.: 31
Prior U.S. Cls.: 1 and 46

Reg. No. 3,245,440
United States Patent and Trademark Office Registered May 22, 2007
TRADEMARK
PRINCIPAL REGISTER
OKANAGAN PLANT IMPROVEMENT CO. LTD. THE MARK CONSISTS OF STANDARD CHAR
(CANADA CORPORATION) ACTERS WITHOUT CLAIM TO ANY PARTICULAR
4200 HIGHWAY 97 FONT, STYLE, SIZE, OR COLOR.
SUMMERLAND, BRITISH COLUMBIA, CANADA
V0H 1Z0
FOR: LIVE COMMERCIAL FRUIT TREES AND SN 78-589,548, FILED 3-17-2005.

FRESH DECIDUOUS FRUIT, IN CLASS 31 (U.S. CLS.
1 AND 46).
FIRST USE 8-1-2002; IN COMMERCE 8-1-2002. JIM RINGLE, EXAMINING ATTORNEY

Exhibit C
US00PP22693P2 US00PP22693P2
(12) United States Plant Patent ao) Patent no.: US PP22,693 P2

Goodwin (45) Date of Patent: May 1, 2012
(54) SWEET CHERRY TREE NAMED 'GOODWIN' (22) Filed: Dec. 1, 2010
(50) Latin Name: Prunus avium (51) Int. CI.

Varietal Denomination: Goodwin A01H5/00 (2006.01)
(52) U.S. CI. ... Plt./181
(75) Inventor: Gordon C. Goodwin, Wenatchee, WA (58) Field of Classification Search Plt./l 81
(US) See application file for complete search history.
(73) Assignee: Van Well Nursery, Inc., Wenatchee, WA Primary Examiner — Susan McCormick Ewoldt
(US) (74) Attorney, Agent, or Firm — Michelle Bos
(57) ABSTRACT
( * ) Notice: Subject to any disclaimer, the term of this
patent is extended or adjusted under 35 'Goodwin' is a new sweet cherry variety notable for its late
U.S.C. 154(b) by 2 days. maturity and large, attractive fruit.
(21) Appl.No.: 12/928,046 4 Drawing Sheets
1 2
Genus and species: Prunus avium. TABLE 1
Variety denomination: 'Goodwin'.
Variety Number of viable fruits per 100 blossoms
CROSS-REFERENCE TO RELATED 'Goodwin' 95
APPLICATIONS 5 'Sweetheart' 47
'Skeena' 46
'Bing' 42
None.
STATEMENT REGARDING FEDERALLY The following table illustrates additional distinguishing
SPONSORED RESEARCH OR DEVELOPMENT 10 characteristics of 'Goodwin' as compared to 'Sumleta' and

'Bing.'
None.
TABLE 2
BACKGROUND AND SUMMARY OF THE

15 Characteristic 'Goodwin' 'Sumleta' 'Bing'
VARIETY
Maturity date +30 +7 0
Pollination Self-fruitful Self-fruitful Pollenizer
The new sweet cherry variety 'Goodwin' is believed to be requirement required
a whole tree mutation of 'Sumleta' cherry (U.S. Plant Pat. No. Productivity Much heavier than Heavier than 'Bing' Standard
'Bing'
11,378). The inventor planted 'Sumleta' cherry trees in his 20
Fruit Size Equal to or larger Larger than 'Bing' Standard
commercial cherry orchard on Stemilt Hill near Wenatchee,
than 'Sumleta'
Wash, in 2000. In 2003, he observed that one of the trees was
different from the others. In particular, he noted that its fruit
matured a week after 'Sumleta' and a full 30 days after 'Bing'
BRIEF DESCRIPTION OF THE PHOTOGRAPHS
(not patented). The mutated tree was asexually propagated by 25
budding onto 'Mazzard' (not patented) rootstock at Quincy,
FIG. 1 shows the original tree of the new variety;
Wash, in 2003 . These second generation trees were planted in
FIG. 2 shows a branch of the new variety;
the orchard in 2005 , and fruited in the spring of 2008 . In 2005 ,
FIG. 3 shows fruit of the new variety; and
150 trees were propagated on 'Gisela 6' (U.S. Plant Pat. No.
FIG. 4 shows leaves of the new variety.
8,954) rootstock using scionwood taken from the second 30
The colors of these illustrations may vary with lighting
generation trees. These third generation trees were planted in
conditions. Color characteristics of this new variety should
the spring of 2007 and fruited in the spring of 201 0. All of the
therefore be determined with reference to the observations
trees through the third generation have consistently carried
described herein, rather than from the illustrations alone.
the same late maturing characteristics of the parent tree. 35
'Goodwin' was initially selected for, and is distinguished
DETAILED BOTANICAL DESCRIPTION
by, its late maturing fruit. It has also been observed that the
blossoms of 'Goodwin' are hardier than those of 'Sumleta' The following detailed botanical description is based on
and 'Bing'. Approximately 12 days after full bloom, repre- observations ofthe original tree of the variety, planted in 2000
sentative branches of 'Bing', 'Sweetheart', 'Skeena' (U.S. 40 and grown on 'Mazzard' rootstock (not patented). Observa-
Plant Pat. No. 11,392), and 'Goodwin' were collected and tions were recorded and photographs taken during the 2009
blossom hardiness was compared. Table 1 illustrates the growing season at Wenatchee, Wash. The characteristics
improved blossom hardiness of 'Goodwin' as compared to described will vary somewhat depending upon cultural prac
the other varieties. tices and climatic conditions, and can vary with location and
US PP22,693 P2
3 4
season. Quantified measurements are expressed as an average Base shape. —Acute.

of measurements taken from a number of individual plants of Margin.—Typical of sweet cherry.
the new variety. The measurements of any individual plant, or Coloration ofupper surface.—White.
any group of plants, of the new variety may vary from the Coloration oflower surface.—White.
stated average. Colors are described with reference to the 5 Pistil:
Munsell Book of Color. Size.—Length 12 mm, diameter 1 mm.
Tree: Color. —5GY 9/2 (pale yellowish green).
Vigor. —Highly vigorous. Stigma:
Habit, shape. —Upright, spreading. Size. — 1 mm diameter.
10
Density. —Average for sweet cherry trees. Color.—2.5Y 7/6 (buff).
Height. —5 m. Style:
Spread. —4 m. Size. — 17 mm from ovary to stigma.
Trunk diameter (at 50 cm above the soil line).—30 cm. Color. — 10Y 9/4 to 2.5Y 7/6 (pale yellow to buff).
Bark texture.—Typical sweet cherry; smooth with ver Ovary (unfertilized):
15
tical striations and horizontal lenticels. Size. —2 mmx4 mm.
Bark coloration. —7.5 R2/4 (reddish brown), similar to Color. —5GY 6/8 (green).
'Sumleta'. Stamens:
Lenticel size.—Similar to 'Sumleta'. Quantity. —20 to 30.
Lenticel color.—Similar to 'Sumleta'. 20 Anther size.—Medium, 0.5 mm.
Lenticel quantity. —Similar to 'Sumleta'. Anther color. —5Y 8.5/4 (yellow).
Branch (main structural branches): Filament size. — 10 to 15 mm.
Diameter. — 12 cm at 30 cm from trunk. Filament color.—Similar to 'Bing'.
Crotch angle. —60° to 90°. Presence/abundance ofpollen.—Abundant.
Bark color. —7.5R 2/4 (reddish brown). 25 Color ofpollen. —5Y 8.5/4 (yellow).
Bark texture.—Typical of sweet cherry; smooth with
Sepals:
vertical striations and horizontal lenticels.
Quantity. —5.
Lenticels. — 1 mmx5 mm on 2 year old wood; 3 mmxlO
Color. —5GY 7/4 (light green).
mm on 4 year old wood; color 5YR 8/2 (tan); about 2
Shape. —Elongated, recurved (similar to 'Bing').
per cm2 on young wood, 1 per cm2 on older wood. 30
Apex.—Acute.
One year old shoot:
Base. —3 to 4 mm in width.
Length. —60 cm.
Margin.—Smooth, with fine pubescence.
Color. —2.5Y 4/4 (greenish brown).
Thickness. — 1 cm at base. Length. —6-8 mm.
Internode length. —Similar to 'Sumleta', 10 to 15 cm. 35 Width. —3-4 mm.

Pubescence.—Absent. Leaves:
Lenticel size. —0.5 mm diameter. Length. — 12.5 cm.
Lenticel color. —2.5Y 6/4 (light greenish tan). Width. —5.8 cm.
Lenticel quantity. —Approximately 3 per cm2. Blade margin.—Irregularly serrate to occasionally
Flower buds: 40 crenate.
Quantity per spur. — 1-5, average 3 per node. Leafshape.—Lanceolate.
Shape. —Elongate, conic. Apex shape. —Acuminate.
Length. —5 mm. Base shape. —Oblate.
Diameter. —2 mm. Texture.—Smooth, with slight depression along veins.
Color. —Closed bud 5GY 6/8 (green). 45 Attitude in relation to shoot. —60° to 90° when mature.
Flowers: Color of upper surface. —2.5GY 3/4 (dark green).
Diameter offully open flower. —25 to 30 mm. Color of lower surface. —5GY 4/4 (medium green).
Depth offully open flower. — 10 to 15 mm. Petiole:
Relative position of petal margin. —Slightly overlap Length. —3.0 to 3.5 cm.
ping. 50 Diameter. —2.0 to 3.0 mm.
Pedicel length.—Medium, 20 to 30 mm, shorter than Coloration. — 10Y 4/2 (olive green).
'Bing', similar to 'Brown' (U.S. Plant Pat. No. Glands. —2 present, reniform, 7.5Y 6/8 (yellow green)
15,386). to 7.5R 4/8 (reddish), positioned on rim of petiole
Pedicel diameter. — 1 mm. groove about 3 cm from base of leaf petiole and about
Pedicel color. —7.5GY 7/8 (light green). 55 2 mm below leaf blade.
Number offlowers per cluster. —5 to 8. Fruit:
Date of first bloom.—Apr. 20, 2009 (Stemilt Hill, Quantity per cluster. —2 to 4.
Wenatchee). Diameter. —25 to 30 mm.
Date offull bloom. —Apr. 22, 2009 (same as 'Bing'). Length. —25 mm.
Pollination requirement.—Self fertile. 60 Weight. — 15 to 25 gm.
Petals: General shape in profile. -Uniform, symmetrical,
Number perflower. —5. mostly round, similar in shape to 'Bing' and 'Sum
Length. — 15 to 17 mm. leta' .
Width. — 13 mm. Shape ofstem end.—Flat.
Petal shape.—Abovate, cupped slightly inward. 65 Shape of apex.—Rounded, pistil point not indented.
Apex shape.—Round. Diameter ofstalk cavity. —5 to 8 mm.
US PP22,693 P2
5 6
Depth ofstalk cavity.—Medium, 2 mm. Color. — 10YR 6/4 (light brown).

Depth ofsuture. —No apparent suture. Surface texture. —Smooth.
Skin: Tendency to split.—None noted.
Thickness.—Thin, similar to 'Sumleta'. Ventral edge.—Smooth, no wings or ridges.
Texture.—Crisp, similar to 'Sumleta'. 5 Dorsal edge. —Smooth, with slight ridge from base to
Color. —2.5RP2/2 (red purple); Similarto 'Sumleta'and apex.
'Bing' at equivalent stage of maturity. Harvest:

Overcolor. —Same as ground color. Time for harvest. —30 days after 'Bing'; 7 days after
Taste.—Sweet, low acid, similar to 'Sumleta', lower 'Sumleta'.
acidity than 'Bing' (thus milder flavor). 10 Number ofpicks. — 1 .
Lenticels.—Obscure, similarto 'Sumleta'. Amount offruit produced per tree per harvest. —Ex
Stalk: tremely productive, superiorto both 'Bing' and 'Sum
Length. —3.5 to 4 cm. leta' based on original tree versus adjacent trees; com
Diameter. — 1 to 2 mm. parison of second and third generation trees not
Color. —5GY 6/4 (green). 15 available.
Flesh: Bearing (annual, biannual). —Annual.
Firmness offlesh.—Medium firm. Chilling requirement.—Unknown.
Flesh texture. —Crisp, juicy, similarto 'Sumleta'. Cold hardiness.—Hardy in area tested (North Central
Fibers.—Not noticeable. Washington, USDA Zone 5).
Aroma.—None detected. 20 Disease resistance/ susceptibility: None noted.
Juiciness.—Very juicy. Market use.—Fresh.
Brix. —20 to 24 at maturity. Keeping quality. —Good.
Flesh color. —2.5RP 2/2 (deep purple). Shipping quality.—Good.
Juice color. —2.5RP 2/2 (deep purple). What is claimed is:
Stone: 25 1 . A new and distinct variety of cherry tree, substantially as
Length. — 10 mm. illustrated and described herein.
Diameter. —8 mm.
Shape. —Oval, rounded.
U.S. Patent May 1, 2012 Sheet 1 of 4 US PP22,693 P2
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Case 2:20-cv-00181 ECF No. 1-4filed 05/18/20 PageID.43 Page 1 of 2
JS 44 (Rev. 02/19) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
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purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I.Her
(a)Majesty
PLAINTIFFS
the Queen in Right of Canada as Represented by the
DEFENDANTS
Van Well Nursery, Inc. , a Washington corporation; Monson Fruit Co.,
Minister of Agriculture and Agri-Food, a Canadian governmental Inc., a Washington corporation; Gordon and Sally Goodwin,
authority, individually and as a marital community.
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant Chelan WA
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
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#1200, Spokane, WA 99201; 509-455-6000
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(For Diversity Cases Only) and One Box for Defendant)
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of Business In This State
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Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

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CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 485 Telephone Consumer
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) Protection Act
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 490 Cable/Sat TV
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 850 Securities/Commodities/
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) Exchange
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 890 Other Statutory Actions
Medical Malpractice Leave Act ’ 891 Agricultural Acts
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS ’ 893 Environmental Matters
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 895 Freedom of Information
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) Act
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 896 Arbitration
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 ’ 899 Administrative Procedure
’ 245 Tort Product Liability Accommodations ’ 530 General Act/Review or Appeal of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION Agency Decision
Employment Other: ’ 462 Naturalization Application ’ 950 Constitutionality of
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration State Statutes
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. Sec. 271, 15 U.S.C. Sec. 1125(a)
VI. CAUSE OF ACTION Brief description of cause:
Patent infringement, false designation of origin, reverse passing off, and false advertising under Lanham Act.
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
05/18/2020 /s/ Daniel W. Short
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
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Case 2:20-cv-00181
JS 44 Reverse (Rev. 02/19) ECF No. 1-4 filed 05/18/20 PageID.44 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE
NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in
statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

The Queen v. Van Well Nursery - Complaint (Plant Patent)

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The Queen v. Van Well Nursery - Complaint (Plant Patent)

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Case 2:20-cv-00181 ECF No. 1 filed 05/18/20 PageID.

1 Jennifer D. Bennett (pro hac vice forthcoming)

10 Attorneys for Plaintiff

1 14. On information and belief, Defendant Monson Fruit Company, Inc.

1 evaluations of the selections to AAFC. The Restriction Agreement also prohibited

1 https://www.goodfruit.com/glory-be/, Goodwin is quoted as stating, “I thought it

1 sale, or selling the patented Staccato® (i.e., “Glory”) trees or fruit.

1 Glory ‘693 Patent.

1 FOURTH CAUSE OF ACTION: UNFAIR COMPETITION AND FALSE

1 among other things, that Glory is different than Staccato®.

1 91. On information and belief, Defendants knew of the business relationships

12 /s/ Daniel W. Short .

18 Jennifer D. Bennett (pro hac vice

(12) United States Plant Patent ao) Patent no.: US PP20,551 P3

(52) U.S. CI. Plt./181 3 Drawing Sheets

variety is self-compatible and the fruit matures, on average, pollen parent.

SUMMARY OF THE INVENTION Under growing conditions at the Pacific Agri-Food

the Pacific Agri-Food Research Centre Summerland. Evalu

ring. The variety demonstrates significant differences from 1987 0 16 16 16 35

red in color and of moderate glossiness with a few light 1992 0 10 14 14

rain-induced cracking (20% natural rain splits). The stone is 1998 0 9 29

tion field at the Pacific Agri-Food Research Centre at

The Pacific Agri-Food Research Centre Summerland,

elevation of approximately 1100 feet above sea level. The

4 trees of '13S2009' were established in 1993. The variety

Average Variety Variety

1999 12.8 12.2 11.5 11.0 11.2 Titratable

The flesh is significantly firmer than 'Lapins', slightly

Shores Durometer, whereas 'Sumleta' averages 79 and 'Lap

rity of cherry fruit.

Year Sumleta Lapins Skeena Sweetheart 13S2009

Year Sumleta Lapins Skeena Sweetheart 13S2009 1995 34 7 25 26 14

1999 21 21 19.6 21.9 20.3 Total 42 26 23 29 20

Total 101.1 99.3 86.8 100 98.6

U.S. Patent Dec. 15, 2009 Sheet 1 of 3 US PP20,551 P3

U.S. Patent Dec. 15, 2009 Sheet 2 of 3 US PP20,551 P3

M;' flfeli &

U.S. Patent Dec. 15, 2009 Sheet 3 of 3 US PP20,551 P3

Prior U.S. Cls.: 1 and 46

FOR: LIVE COMMERCIAL FRUIT TREES AND SN 78-589,548, FILED 3-17-2005.

FIRST USE 8-1-2002; IN COMMERCE 8-1-2002. JIM RINGLE, EXAMINING ATTORNEY

(12) United States Plant Patent ao) Patent no.: US PP22,693 P2

(50) Latin Name: Prunus avium (51) Int. CI.

(US) (74) Attorney, Agent, or Firm — Michelle Bos

(21) Appl.No.: 12/928,046 4 Drawing Sheets

CROSS-REFERENCE TO RELATED 'Goodwin' 95

STATEMENT REGARDING FEDERALLY The following table illustrates additional distinguishing

SPONSORED RESEARCH OR DEVELOPMENT 10 characteristics of 'Goodwin' as compared to 'Sumleta' and

BACKGROUND AND SUMMARY OF THE

season. Quantified measurements are expressed as an average Base shape. —Acute.

Internode length. —Similar to 'Sumleta', 10 to 15 cm. 35 Width. —3-4 mm.

Depth ofstalk cavity.—Medium, 2 mm. Color. — 10YR 6/4 (light brown).

'Bing' at equivalent stage of maturity. Harvest:

U.S. Patent May 1, 2012 Sheet 1 of 4 US PP22,693 P2

U.S. Patent May 1, 2012 Sheet 2 of 4 US PP22,693 P2

U.S. Patent May 1, 2012 Sheet 3 of 4 US PP22,693 P2

U.S. Patent May 1, 2012 Sheet 4 of 4 US PP22,693 P2

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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V. Origin. Place an "X" in one of the seven boxes.

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