The Ludys propagated thousands of vines in plain view in more than one location, the judge wrote. Eventually some of the vines produced enough grapes to market. However, because of the patent issue, they were sold as Thompson seedless, according to the judge’s ruling.
The planting and sale of the grapes by the Ludys was the heart of the other grower’s “public use” argument against the USDA and the commission.
However, the judge said, even though the vines were in public view the grapes they produced were not in public use because the plant stock had been ill-gotten and the fruit was not marketed as the named varieties.
Also, the judge said, not even the inventors of the two varieties — David Ramming and Ronald Tarailo from the USDA breeding facility — could identify the Scarlet Royal and Autumn King varieties in the courtroom when they were presented with grapes and plant material.
That lack of visually identifiable traits proved no one knew the specific varieties were in use, the judge wrote, making the public use argument unsupportable.