Cattle genomics patent still up in the air

Federal Court of Australia's ruling handed down this morning.


ATTEMPTS by producers to halt a brazen attempt by United States interests to patent cattle genetic selection techniques are still in limbo following the handing down this morning of a Federal Court of Australia ruling.

US company Branhaven has been given 14 days to refine its claim on the patent.

That would likely mean narrowing its claim as the Court’s finding indicated the claim was broad, legal experts believe.

Meat and Livestock Australia (MLA), on behalf of producer levy payers, launched an appeal  almost two years ago against a decision by the Australian Patent Office (APO) to grant the patent to meat giant Cargill and Branhaven.

Beef producer and science leaders say the patent means fees will be payable for the application of more than half the DNA-associated genetic tests used in Australia’s beef and dairy industries.

Only Branhaven has actively resisted the appeal.

Branhaven acquired it’s interest in the patent following the bankruptcy of Cargill’s previous partner Metamorphix and is believed to be a company which specialises in extracting value from a patent portfolio rather than having direct interests in the cattle industry.

MLA has spent $1.1m on the appeal.

Producers say the ramifications to the advancement of genetic gains in Australian herds would be severe should MLA’s appeal not be successful.

In conclusions on the reasons for today’s judgement, Judge J Beach said aspects of the claims in their present form were deficient in terms of lack of clarity, a failure to define the invention and in relation to some questions of construction and a lack of utility.

“Accordingly I would uphold MLA’s appeal to this extent. But otherwise I would dismiss MLA’s appeal. I will not, however, make any final orders until Branhaven has been given the opportunity to consider whether to apply to amend any of the claims to address the concerns that I have expressed in these reasons,” the judge’s conclusions said.

However, industry sources say today’s result is positive, given the judge effectively agreed with the core argument the patent claim was too broad.

MLA has just released this statement:

MLA has welcomed today’s decision in the Federal Court of Australia that effectively requires Cargill USA and Branhaven LLC to wind back the broad scope of their Australian patent application for cattle selection methods.

MLA commenced legal proceedings in the Federal Court of Australia in 2016 on behalf of industry to appeal an APO decision to allow the patent application to be granted.

MLA argued, among other things, that the scope of the claims of the patent application were unclear and, as a result, so broad that they would inhibit genomic selection for all cattle production traits in Australia.

In the reasons for judgment today, the Court invited Cargill USA and Branhaven LLC to amend the patent application to overcome the lack of clarity in the proposed patent claims. Both parties are due to return to court within 21 days to address the Court on the issue of amendment of the patent application.

MLA will continue to pursue every option to protect the genetic advancement of Australia’s beef herd.

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