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UPDATED: Industry awaits Branhaven genome patent judgement

by James Nason, 24 October 2018

UPDATE 10am Thursday 25 October 2018: Since the publication of this article Beef Central has received information from MLA that despite statements to Senate Estimates hearings that a judgement is expected in November, no actual date has been set by the Federal Court so it is still not clear whether the judgement will be handed down in November or at a later date.

ORIGINAL ARTICLE:

A court decision with potentially dramatic implications for the future of Australian cattle research is expected next month.

Meat & Livestock Australia and Dairy Australia are appealing through the Australian Federal Court a decision by IP Australia to allow a US shelf company to patent the genetic makeup of Australian cattle.

If it proceeds the Australian livestock industry fears the patent could lead to substantial license fees being imposed on genetic technology that is at present routinely used for industry research, adding to the cost of future productivity and profitability improvements and potentially curbing future research.

Meat & Livestock Australia managing director Richard Norton told a Senate Estimates hearing in Canberra on Tuesday that after months of delay, the Australian Federal Court is expected to hand down its decision on the appeal in November.

That judgement had been expected by August, but Mr Norton said a delay had been occurred because US corporation Cargill Pty Ltd, whch had been one of the co-applicants for the patent claim along with US shelf-company Branhaven LLC, has now signed its rights to appeal to another shelf-company, one with the same director as Branhaven LLC.

A spokesperson for Cargill Australia confirmed to Beef Central today that Cargill Pty Ltd has assigned its rights in the Australian ‘253 Patent Application to a company called “SelectTraits Genomics LLC”.

SelectTraits Genomics LLC has now been joined as a party to the Court proceeding.

The development means Cargill is no longer a co-owner of the Australian ‘253 Patent Application.

While limited in its ability to comment publicly on the ongoing court proceedings, from the start of the process Cargill said Branhaven only acquired the interest in the patent application following the bankruptcy of its previous partner Metamorphix, and, as a joint owner of the application, was unable to act independently in relation to the patent application, and could not withdraw the patent application without the consent of Branhaven LLC. From the outset Cargill said it was not be actively defending the appeal against the patent application by MLA and Dairy Australia.

“Regarding the current Australian Federal Court case, other than dealing with Court ordered document production and making submissions on costs, Cargill did not actively participate in the litigation in Australia,” a spokesperson for Cargill Australia said.

“Cargill cannot otherwise comment on matters that are before the Court.”

In a decision made earlier this year the Federal Court judge overseeing the case advised the joint applicants to narrow the basis of their claim. They were given the opportunity to amend their application accordingly, and a final judgement is now expected some time next month.

At a Senate Estimates hearing in May, staff from the Department of Agriculture and Water Resources advised that the department had received advice from IP Australia indicating that when the original patent application was put forward by Branhaven over a decade ago, Australian IP law was different. Legislation had subsequently changed, and broad applications would no longer be accepted, was the advice given to the department by the patent regulator.

 

 



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