Cultivation of ill-gotten plant stock did not constitute “public use,” a federal judge said, ruling against grape growers and upholding the government’s patents and the California Table Grape Commission’s exclusive license for two grape varieties.

Judge Sam Hadden filed his ruling in the six-year-old case in September with little fanfare. Neither the U.S. Department of Agriculture nor the grape commission issued statements when Hadden ruled against the grape growers and ordered them to pay certain legal fees for the commission.

Officials with the commission were not immediately available for comment. The USDA’s staff was unavailable for comment because of the budget-related government shutdown.

California grape growers filed the case in November 2007. They claimed the USDA’s patents for the Scarlet Royal and Autumn King varieties should be nullified because the grapes were in “public use” for a year before the patents were issued in January and February 2006.

The grower plaintiffs were Delano Farms Co., Four Star Fruit Inc., and Gerawan Farming Inc. They presented their case in two days during a bench trial in June.

The growers not only challenged the validity of the USDA’s patents on the two grape varieties, but also the exclusive licensing rights that the California Table Grape Commission has on the two varieties.

In his decision, the judge focused on what turned out to be unauthorized possession of grape vine plant stock that two other California growers — cousins Jim Ludy and Larry Ludy — propagated and planted.

The judge wrote that evidence and testimony showed the Ludys got the plant stock immediately following an August 2001 open house when the grape commission and USDA showed the grape varieties, which were in the experimental phase at the agency’s breeding program.

Commission president Kathleen Nave told Larry Ludy during the open house that growers could not view the varieties in the field because of plans to patent them. He and Jim Ludy asked a USDA employee they knew at the breeding station to get them some “sticks” from the unreleased varieties, according to testimony.

Judge Hadden wrote in his decision that the USDA employee, Rodney Klassen, who did pruning and other field work at the USDA operation, provided the Ludys with grape plant stock. Testimony indicated Larry and Jim Ludy, as well as Jim’s brother Jack Ludy, along with Klassen, all knew that the plant stock should not have been released.

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.