Driscoll’s v. California Berry Cultivars: Federal Circuit Dismisses Appeal (25-1747)
Driscoll’s, Inc. appealed a district court summary judgment ruling against it on three berry plant patents covering Amesti™, Lusa™, and Marquis™ cultivars. The Federal Circuit dismissed the appeal in 47 days, finding no jurisdiction because CBC’s invalidity counterclaims remained unadjudicated — leaving the core IP dispute unresolved.
Premature Federal Circuit appeal exposes the finality trap in patent litigation
Driscoll’s, Inc., the global berry giant and holder of multiple U.S. plant patents covering proprietary strawberry cultivars including Amesti™, Lusa™, and Marquis™, sued California Berry Cultivars, LLC and Douglas Shaw in federal district court for infringement of four plant patents. CBC responded with counterclaims of non-infringement and invalidity. The district court granted CBC’s motion for summary judgment on Driscoll’s infringement claims and entered judgment accordingly — a significant initial setback for Driscoll’s.
Driscoll’s appealed to the Federal Circuit (Case 25-1747, filed May 7, 2025) and simultaneously moved to hold the appeal in abeyance pending the district court’s entry of a final judgment. The Federal Circuit denied the motion and dismissed the appeal on June 23, 2025, finding it lacked jurisdiction under 28 U.S.C. § 1295(a) because CBC’s invalidity counterclaims remained unadjudicated. Under Federal Circuit precedent — specifically Nystrom v. Trex Co. — a judgment that does not dispose of all pending counterclaims is not a final judgment, and no appeal can lie.
The 47-day resolution is notable precisely because it decided nothing on the merits. The dismissal is without prejudice: Driscoll’s may refile within 60 days of an appealable order under the same docket number at no additional cost, preserving appellate rights. What drove this outcome was a classic finality misstep — appealing before all claims and counterclaims were resolved. The validity of the asserted plant patents remains entirely open, and the district court litigation is actively ongoing, meaning the commercial stakes for proprietary berry cultivar IP are far from settled.
Filing to Appeal Dismissed in 47 days
Resolved in 47 days — well below the typical Federal Circuit appeal timeline of 12–18 months, reflecting a jurisdictional dismissal rather than merits review.
Federal Circuit dismisses for lack of jurisdiction: what this means for both parties
No final judgment = no Federal Circuit jurisdiction
Under 28 U.S.C. § 1295(a), the Federal Circuit only has appellate jurisdiction over ‘final decisions’ of district courts. Because CBC’s invalidity counterclaims were still pending when Driscoll’s filed its appeal, the district court had not issued a final judgment disposing of all claims. The Federal Circuit applied its own precedent — Nystrom v. Trex Co. — to dismiss the appeal as jurisdictionally premature. No merits of the patent dispute were addressed.
Jurisdictional dismissalDriscoll’s loses the appeal vehicle — for now
Driscoll’s appeal of the adverse summary judgment ruling has been dismissed, meaning the district court’s ruling against it on infringement stands unreviewed. However, the dismissal is explicitly without prejudice to reinstatement: Driscoll’s may refile within 60 days of a final appealable order under the same docket number without paying an additional fee. The infringement defeat at district court level remains live, pending resolution of invalidity counterclaims.
Reinstatement right preservedCBC’s invalidity counterclaims remain front and centre
California Berry Cultivars secured the procedural win — the premature appeal is gone — but the litigation is far from over. CBC’s invalidity counterclaims are still pending, with the district court having ordered briefing on dispositive motions. A successful invalidity ruling would extinguish Driscoll’s plant patents entirely, offering CBC a more durable commercial outcome than a simple non-infringement finding. The litigation cost burden continues for both parties.
Invalidity counterclaims activeProprietary cultivar IP remains commercially uncertain
Until the district court resolves CBC’s invalidity counterclaims and a final judgment issues, the enforceability of Driscoll’s plant patents covering Amesti™, Lusa™, and Marquis™ cultivars is unresolved. Competitors and licensees in the specialty berry sector should treat these patents as contested. The district court’s summary judgment against Driscoll’s on infringement also suggests meaningful claim scope questions — watch for the validity briefing to signal how durable these proprietary cultivar rights ultimately are.
Plant IP enforceability uncertainFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | DRISCOLL’S, INC. | Company | Global berry producer and plant patent holder — proprietor of Amesti™, Lusa™ and Marquis™ cultivar patentsSearch in Eureka ↗ |
| Defendant | California Berry Cultivars, LLC | Company | California Berry Cultivars, LLC — strawberry cultivar developer asserting invalidity of Driscoll’s plant patentsSearch in Eureka ↗ |
| Plaintiff counsel | Brian Robert Matsui | Attorney | Counsel for DRISCOLL’S, INC.Search in Eureka ↗ |
| Plaintiff counsel | Matthew A. Chivvis | Attorney | Counsel for DRISCOLL’S, INC.Search in Eureka ↗ |
| Plaintiff counsel | Rebecca Weires Setrakian | Attorney | Counsel for DRISCOLL’S, INC.Search in Eureka ↗ |
| Plaintiff counsel | Seth W. Lloyd | Attorney | Counsel for DRISCOLL’S, INC.Search in Eureka ↗ |
| Plaintiff law firm | Morrison & Foerster, LLP | Law Firm | Representing DRISCOLL’S, INC.Search in Eureka ↗ |
| Defendant counsel | Asad Karamally | Attorney | Counsel for California Berry Cultivars, LLCSearch in Eureka ↗ |
| Defendant law firm | Rutan & Tucker, LLP | Law Firm | Representing California Berry Cultivars, LLCSearch in Eureka ↗ |
| Presiding judge | Judge N/A | Judge | Court of Appeals for the Federal CircuitSearch in Eureka ↗ |
Official order — verbatim text
The Federal Circuit’s order is purely procedural — no patent claim was construed, no validity question addressed, and no infringement finding made or overturned. The court applied the well-established finality doctrine: an unadjudicated invalidity counterclaim prevents a final judgment, stripping appellate jurisdiction under 28 U.S.C. § 1295(a). Critically, the dismissal preserves Driscoll’s appellate rights via a cost-free reinstatement mechanism within 60 days of a final appealable order. The costs-neutral outcome — each party bears its own — reflects the procedural rather than substantive nature of the dismissal. The underlying infringement defeat at district court and pending validity battle remain entirely unresolved.
US14771A, US22247A, US18878A & US23400A — Proprietary strawberry cultivar plant patents
The four patents asserted in this case — US14771A, US22247A, US18878A, and US23400A — are U.S. plant patents, a distinct category under 35 U.S.C. §§ 161–164 that protects asexually reproduced distinct and new plant varieties. Plant patents are narrower than utility patents: they protect the specific reproduced variety, not broader methods or compositions. The asserted patents cover proprietary strawberry cultivars commercially marketed as Amesti™, Lusa™, and Marquis™ plants — varieties central to Driscoll’s premium berry breeding programme and commercial supply chain.
For a global berry brand like Driscoll’s, plant patents on specific cultivars are core competitive assets — they restrict rivals from propagating and commercialising those exact varieties. The involvement of California Berry Cultivars and Douglas Shaw — who may have had prior access to Driscoll’s proprietary breeding material — elevates the commercial stakes considerably. CBC’s invalidity counterclaims, if successful, would place these cultivar patents in the public domain, allowing unrestricted propagation by any grower. The sector should monitor the district court’s validity ruling closely: it will set a precedent for how robustly U.S. plant patents can withstand invalidity challenges from former collaborators.
Should you run an FTO against US14771A, US22247A, US18878A and US23400A?
Any berry cultivar developer, licensed propagator, or agricultural biotech company working with strawberry varieties in North America or Europe should assess freedom-to-operate against these four Driscoll’s plant patents. The district court’s summary judgment against Driscoll’s on infringement — though unreviewed — does not invalidate the patents, and the validity questions raised by CBC’s counterclaims remain open. Until final judgment issues, these patents are legally in force and enforceable in principle.
PatSnap Eureka’s FTO Search Agent can map the claim scope of US14771A, US22247A, US18878A, and US23400A against your own cultivar development pipeline, identify prior art relevant to CBC’s invalidity arguments, and flag related plant patent filings in Driscoll’s portfolio. For R&D teams breeding or licensing proprietary strawberry varieties, understanding the current legal status and contested validity of these patents is essential before commercialisation.
Run a freedom-to-operate analysis on US14771DA to assess your product’s exposure
Run FTO in Eureka →Similar Federal Circuit plant patent and agricultural IP appeal cases
Federal Circuit cases involving plant patent infringement, validity counterclaims, and appellate jurisdiction in agricultural and berry cultivar IP disputes.
What this case signals for the specialty berry and plant patent IP landscape
A premature Federal Circuit appeal reveals the finality trap — and leaves major proprietary cultivar patents in legal limbo.
Patent holders: do not appeal until all counterclaims are resolved
Driscoll’s appeal was dismissed because CBC’s invalidity counterclaims remained pending. Under Federal Circuit jurisdiction rules, a summary judgment on infringement alone is not a final decision. IP counsel must audit all pending counterclaims before filing an interlocutory appeal — or risk wasting filing fees and delay.
Invalidity counterclaims are the real battleground in plant patent cases
CBC’s strategic choice to assert invalidity counterclaims — rather than rely on non-infringement alone — means even a win for Driscoll’s on appeal would not fully resolve the threat to its cultivar portfolio. Invalidity, if proven, extinguishes the patent entirely. Plant IP holders should anticipate and prepare for dual-front litigation from the outset.
DRISCOLL’S v California — key questions answered
The Federal Circuit dismissed the appeal for lack of jurisdiction under 28 U.S.C. § 1295(a). Because California Berry Cultivars’ invalidity counterclaims remained pending and unadjudicated in the district court, no final judgment had been entered. Under Federal Circuit precedent (Nystrom v. Trex Co.), a judgment that does not dispose of all pending counterclaims is not a final decision, and the appellate court lacks jurisdiction to hear the appeal.
Yes. The Federal Circuit’s order expressly permits Driscoll’s to reinstate the appeal under the same docket number (25-1747) without paying an additional filing fee, provided it files a new notice of appeal within 60 days of a final appealable order from the district court. Driscoll’s appellate rights are preserved once the district court enters a final judgment resolving all pending claims including CBC’s invalidity counterclaims.
Four U.S. plant patents are asserted: US14771A, US22247A, US18878A, and US23400A. These plant patents cover proprietary strawberry cultivars commercially sold as Amesti™, Lusa™, and Marquis™ plants. Plant patents under 35 U.S.C. §§ 161–164 protect asexually reproduced, distinct, and new plant varieties and are a distinct IP category from utility patents.
As of the Federal Circuit’s June 23, 2025 dismissal, the district court case remains active. The district court granted CBC’s motion for summary judgment on Driscoll’s infringement claims, but CBC’s invalidity counterclaims remain pending with dispositive motion briefing ordered. The validity of Driscoll’s plant patents — and consequently the future enforceability of those cultivar rights — remains to be decided.
The Federal Circuit ordered that neither Driscoll’s nor California Berry Cultivars is entitled to recover appellate costs (such as docketing and printing fees) from the other party. This cost-neutral outcome is typical for procedural dismissals where no party has prevailed on the merits. It does not affect any cost or fee award that may be made by the district court in the ongoing underlying litigation.
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