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There's a Family Battle Over Avocado Clones Waging in Florida's Federal Courts

The son of the Carla avocado’s so-called creator is suing his uncle for illegally selling the same strain under a different name in Florida.

by Zachary Fagenson
Oct 3 2018, 5:51pm

Ury Fischer was a lawyer on an avocado hunt. After years of demanding a Miami produce distributor stop selling the prized Carla variety patented by Agroindustria Ocoeña, the Dominican farm he represents, he decided to see if he could find illegal clones himself .

Turns out, it wasn’t very hard. “Every time I stopped into a market I’d look for them,” he said. Soon, avocados with names like “Avopro” began piling up in his offices.

“We ended up eating a lot of guacamole,” Fischer said. “We sent out some for DNA testing, and some we just threw out because we couldn’t eat them in time.”

The Carla avocado has been considered as a kind of superfruit thanks to its large size—up to five times the size of a Haas—while still being just as oleaginous as the wildly popular Hass avocados. But now it’s at the center of a lawsuit in a Miami federal court in which the son of the avocado’s so-called creator is suing his uncle for illegally selling clones in Florida.

“The whole point of a patent is to create an incentive for somebody to discover new varieties, reproduce them and bring them to market,” Fischer said. “Had my client not discovered this and not taken steps to preserve it, this [avocado] might have been lost to the world.”

Though the origin of the Carla’s name is a mystery, the tree that spawned it was discovered in 1994 in an orchard in the Dominican Republic’s Ocoa River Valley, according to a U.S. patent filed in 2006 by Carlos Antonio Castillo Pimentel. The tree was a Guatemalan and West Indian hybrid that defied logic. While the Caribbean harvest season generally lasts from mid-May to March, Carla, “with proper irrigation… will hang from the trees through the month of June,” according to the patent. In addition to filling the void, the fruit could be stored for weeks and boasted flesh that after being cut would remain bright green for longer than most known varieties. Most importantly it had the same richness as a Hass.

But, apparently, before the patent became official, Carlos Castillo gave some cuttings to his brother Manuel. According to what the Dominican Republic’s former agriculture minister Luis Ramón Rodríguez told the BBC, the brothers, “worked very closely together when they started their avocado farms in San José de Oca, and over time, both integrated their productions vertically, adding a packing plant.”

In 2009, just before the two parted ways to create their own produce companies, Carlos’ son, also named Carlos, took control over his now-deceased father’s company and its patent.

According to Fischer, the younger Carlos’s company, Agroindustria Ocoeña, now harvests 3,500 tons, or about 4.5 million, Carla avocados every year. In 2012, in response to the virtual clones appearing on the market, Agroindustria sent Manuel’s company, Fresh Directions International, a cease-and-desist letter that failed to stem the flood of competing knock-off “Carlas”. “This has been years in the making,” Fischer said.

No one from Fresh Directions International responded to requests for comment.

Though avocados are less frequently patented than other fruits and vegetables,

vast numbers of the plants eaten today are owned by companies that created them through either selective breeding or cloning.

“There are many patented strawberry varieties, there is patented citrus, mangoes,” said Jonathan Crane, a tropical fruit specialist with the University of Florida. “Apples are often patented, so are cherries, and to a lesser extent avocados.”

But the ongoing avocado craze, perpetuated by and manifested in pictures of $18 avocado toasts on everyone’s Instagram, could spur farmers and researchers to create or patent more varieties. According to the USDA avocado consumption over the last two decades has spiked about 443 percent, from 1.6 pounds per person in 1995 to 7.1 pounds in 2015, and its popularity doesn’t seem to have slowed since then.

While patents offer protection and reward to those who create new varieties like the Carla, they could also limit consumer choices or give the companies that own them too much control of the food system. A few years ago, agricultural and biochemical giant Monsanto, now owned by German pharmaceutical multinational Bayer, aggressively pursues patent infringement cases against small farmers who refused to buy their genetically modified seeds that are also resistant to the company’s weedkillers. That said, family-owned companies that develop better food varieties can’t necessarily be compared to profit-obsessed bioagricultural behemoths.

At the moment it’s unclear how much the Miami-based Fresh Directions International could be on the hook for if it’s proven in court that they’re violating the Carla patent. Agroindustria, which filed a lawsuit on September 10 demanding a trial and that Fresh Directions stop selling knock-offs, has yet to put a number figure on how much it believes it’s lost.

Fischer said the company licenses Carla to other Dominican producers and the undisclosed royalties they pay could set the floor for damages in this case. But the total possible fines could be far higher.

“The ceiling is what my client’s lost sales would have been,” he said. “They knew they were infringing, they had a notice, and they kept on going, the court has the discretion to charge up to triple the amount of damages.”