Food & Drink

Want sweeter strawberries? You might have to wait until this lawsuit ends

UC Davis officials Garry Pearson and Mary Delany examine strawberry plants that are at the heart of a multimillion-dollar lawsuit gripping the UC Davis plant-breeding program. Varieties developed at UC Davis account for about half of California’s annual strawberry crop.
UC Davis officials Garry Pearson and Mary Delany examine strawberry plants that are at the heart of a multimillion-dollar lawsuit gripping the UC Davis plant-breeding program. Varieties developed at UC Davis account for about half of California’s annual strawberry crop. Sacramento Bee file

Strawberries grown in California have been getting plumper, juicier and sweeter over the years, thanks in large part to a world-renowned plant-breeding program at UC Davis.

But the breeding program is caught in the grips of a multimillion-dollar lawsuit filed by two former UC Davis scientists – a case that the scientists’ lawyers say has halted the flow of plant innovation from the Davis labs for the time being.

At stake is a program that has produced dozens of improvements in taste, drought resistance and other traits over the years, while earning UC Davis tens of millions of dollars in royalties. The Davis breeding program is considered a worldwide leader; the varieties of berries developed in its greenhouses account for about half of California’s $2 billion-a-year strawberry crop.

The fight is coming to a climax May 15 in a San Francisco courtroom. That’s when a trial begins pitting the University of California against the two former scientists, Douglas Shaw and Kirk Larson, and the Orange County company they’ve founded, California Berry Cultivars.

The dispute revolves around an invaluable collection of tiny strawberry plants, housed in a Davis greenhouse, and the right to turn them into new varieties of strawberries for commercial sale. Shaw and Larson developed the plants and have been trying to wrestle control of them for nearly five years, after giving notice that they were preparing to leave UC Davis. The university has kept an iron grip on the plants, with one official calling them “the crown jewels of the breeding program.”

Shaw and Larson’s lawyer, Greg Lanier, said UC Davis hasn’t released a new variety of strawberry for commercial use since the two scientists formally left the university in 2014.

“If you want more and better strawberries on your table … you should care about whether the university should be able to keep these varieties in a lockbox,” Lanier said in an interview. “Strawberry farmers need new varieties to battle changing weather – it’s rain, it’s drought, it’s changes in what pesticides you can use.”

Lanier said a recent pretrial ruling by U.S. District Judge Vince Chhabria has put the Davis program further into limbo. The judge ruled that UC Davis has the right to hold onto the plants themselves, but the university doesn’t control the intellectual property associated with the plants.

That puts a crimp on UC Davis’ ability to use the plants to develop new commercial varieties, according to Lanier. At the same time, Lanier said it’s nearly impossible for Shaw and Larson to develop new strawberry varieties without physical possession of the plants they bred.

“Without the physical plants in our possession, we can’t develop them anymore,” he said.

UC Davis spokesman Andy Fell said “the program is in full swing. New varieties are in the pipeline, but breeding new plants and bringing them to market does take some time. We look forward to having new varieties for the industry in the future.”

On the eve of the trial, Shaw and Larson are mounting a bit of a public relations blitz. California Berry, the company they founded to develop new strawberry varieties, released letters from more than 60 farmers to UC Davis and the UC Board of Regents, demanding that the university license the plants to Shaw and Larson.

“It is our hope that UC Davis and (California Berry) are able to find some common ground that allows these (strawberry) selections to be released to the industry,” wrote Michael Cleugh of Eclipse Berry Farms, a grower in Oxnard.

Many of the major strawberry growers in California maintain their own breeding programs, including Driscoll Strawberry Associates of Watsonville. But other big brands have relied on varieties bred at UC Davis, including Dole and California Giant, and the university program is popular among scores of smaller independent farmers. UC Davis licenses its varieties around the world, but California growers get a discount.

UC Davis has been developing strawberries for growers since the 1930s. Shaw and Larson, who arrived at UC Davis more than 25 years ago, have been responsible for some startling innovations, including a flavor-rich variety nicknamed the Albion that came out in 2004.

But the marriage between industry and academia began souring about five years ago, when Shaw and Larson told higher-ups at Davis they were ready to strike out on their own. Although they had earned millions of dollars personally off the university’s strawberry patents, they said they felt their work was no longer appreciated on campus.

The first of two big lawsuits quickly ensued. A grower-supported group called the California Strawberry Commission sued the university in late 2013, claiming UC Davis was going to abandon plant breeding and was allowing Shaw and Larson to walk out the door with the priceless strawberry plants. The commission noted that the plants had been bred in part with millions of dollars in research funds from the strawberry growers, and the scientists shouldn’t be allowed to “privatize” their research.

The case was settled in 2015 after UC Davis hired a new director of plant breeding and pledged to safeguard the cherished strawberry plants.

But peace didn’t last long. Just a year ago, Shaw, Larson and their new company sued the university over its refusal to sign a license allowing them access to the plants. They called UC Davis’ actions “an apparent attempt to suppress competition.” The suit seeks $45 million in damages and a license to use the plants. UC Davis filed its own suit, accusing the scientists of unauthorized use of some plant varieties while they were still working for the university.

In his pretrial ruling, Chhabria suggested both sides have plenty to answer for.

“From a legal standpoint it would be acceptable for the judgment to ‘sock it’ to both sides,” he wrote.

Dale Kasler: 916-321-1066, @dakasler