The WA 2 legal battles have escalated.

Washington State University has sued in federal court for patent infringement against Apple King, a Yakima fruit producer growing and marketing the apple. Meanwhile, a state lawsuit filed by the same producer against WSU for violating public process is ongoing.

The university filed its federal case in late January, accusing two companies related to the producer, Pro Orchard Management and Apple King, of patent infringement for propagating the WA 2 without a license. The two LLCs are comprised of the same company officials who make up Keller Fruit, which indeed does have a license. Ray Keller is a principal in all the companies.

Keller’s complaint against WSU is still undecided. He and other producers with licenses to grow the WA 2 filed a lawsuit in 2017 in Yakima County Superior Court, accusing WSU of violating public process laws when they awarded a management contract to another company without taking public bids.

WSU chose to file the new patent suit now because its attorneys did not learn about Pro Orchard Management and Apple King having WA 2 trees until sometime in 2019, during the discovery process of the older Superior Court Case, said Albert Tsui, a patent attorney and business development specialist at WSU.

Keller and his attorney declined to comment on the new federal lawsuit.

The debate goes back several years. WSU released the apple in 2011 without a trademarked name and allowed some of the growers, including Keller, who participated in field trials to continue growing and marketing the apple. Later, after Keller’s company had already spent money and effort marketing the apple, WSU contracted Proprietary Variety Management of Yakima to commercialize the variety. That did not stop Keller from growing the apple, but it does prevent him from recruiting new growers to expand his brand. 

Keller’s companies have trademarked the WA 2 as Crimson Delight. WSU named the apple Sunrise Magic. 

—by Ross Courtney

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