PULLMAN — Washington State University is countersuing Phytelligence, an agricultural biotechnology company, for breach of contract and patent and trademark infringement in state and federal court.

The litigation, which relates to the Cosmic Crisp apple, was filed to protect WSU’s intellectual property rights, university officials said Wednesday, March 14.

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

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

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

Phytelligence never secured a license.

However, in 2016, the company sold 135,000 Cosmic Crisp trees to an outside grower, the countersuit alleges.

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

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

"Phytelligence’s actions threaten nearly two decades of work and the financial support provided by apple growers in the state of Washington. We owe it to all those companies that have followed the rules. We have to protect the significant investment the University and Washington growers have made to bring this new product to market."

Nearly 5 million Cosmic Crisp trees are expected to be planted in 2018. The Cosmic Crisp apple is highly valued by growers and retailers for its large, juicy fruit; exceptional flavor; and slowness to brown after being cut. Equally important, the new varietal can be stored for more than a year and still maintain its distinctive texture and flavor.

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

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

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