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Washington growers sample the WA 2 apple variety during a 2014 tour in Prosser, Washington. A fruit shipper and Washington State University, which developed the variety, are in a legal battle over the rights to commercialize it. (TJ Mullinax/Good Fruit Grower)

Washington growers sample the WA 2 apple variety during a 2014 tour in Prosser, Washington. A fruit shipper and Washington State University, which developed the variety, are in a legal battle over the rights to commercialize it. (TJ Mullinax/Good Fruit Grower)



A lawsuit over the rights to commercialize the WA 2 apple, one of two varieties released by Washington State University, awaits a reconsideration hearing after a lower court judge partially ruled in the university’s favor.

WSU’s breeding program has garnered national attention with the upcoming commercial harvest of the WA 38, a variety to be sold under the brand name Cosmic Crisp later this year.

The breeding program first developed the WA 2 apple, releasing it in 2011 without claiming any naming or marketing rights. WSU then granted several growers who participated in the evaluation phase of the apple’s development a nonexclusive license to continue production.

One of those growers, Ray Keller of Yakima, Washington, a partner in the Yakima-based Apple King packing company, subsequently trademarked the WA 2 as Crimson Delight and began developing a market for the fruit.

However, in 2016, WSU contracted Proprietary Variety Management, or PVM, — the company already hired to commercialize WA 38 — to also begin distributing and licensing the WA 2. WSU later trademarked the variety Sunrise Magic.

That contract between PVM and WSU allows Keller to continue packing fruit from the growers who are already growing the apple, but it prevents him from recruiting new growers.

Keller and his fellow plaintiffs filed suit in September 2017 in Yakima Superior Court, alleging among other things that WSU violated public process laws by awarding the contract to PVM without a public bid.

Both WSU and PVM are listed as defendants in the lawsuit; a damages claim alleging breach of contract for allowing additional licenses applies only to WSU.

Last fall, Yakima Superior Court Judge Blaine Gibson ruled against the plaintiffs on their first allegation, siding with WSU and PVM that a public bid was not required, and left the contract intact. However, Gibson has agreed to a reconsideration hearing.

Still pending in Yakima Superior Court at press time was the growers’ breach-of-contract claim, as well as a counter breach-of-contract claim WSU filed against Keller, alleging he distributed WA 2 trees to a Harrah, Washington, orchard outside his ownership and control, which Keller denies.

Apple King plans to pack about 2,500 bins of Crimson Delight for the 2018-2019 season, Keller said.

Meanwhile, growers working within PVM’s contract have planted many WA 2 trees, but few have reached maturity, said Lynnell Brandt, PVM president. Thus, packers will ship a small amount this year, he said. •

—by Ross Courtney