UPDATED: This article has been updated to include comments from Meat & Livestock Australia (posted below original article)
In a decision with potentially concerning implications for future cattle industry research in Australia, the Federal Court has today ruled against Meat and Livestock Australia’s bid to block a US company from being granted a patent over genomic methods of identifying desirable traits of Australian cattle.
In a judgement handed down today Federal Court Justice Beach said he would allow the patent granted by IP Australia to US shelf company Branhaven to proceed, with some amendments.
Meat & Livestock Australia and Dairy Australia appealed IP Australia’s decision to grant the patient, fearing it could lead to substantial license fees being imposed on genetic technology which is routinely used for industry research, and would add to the cost of future productivity and profitability improvements and potentially curbing future research.
In February 2018 Justice Beach advised the joint applicants Branhaven LLC and Cargill to narrow the basis of their claim. They were given the opportunity to amend their application accordingly. Justice Beach has handed down his final decision today.
At a Senate Estimates hearing in May 2018, 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.
However Justice Beach ruled today that he would allow amendment sought by Branhaven, paving the way for its patent application proceed.
Branhaven had requested that MLA be required to pay its legal costs, but Justice Beach rejected that and ordered Branhaven to pay 10 percent of MLA’s costs, stating this was “to reflect the fact that MLA had some modest success on its appeal and is a fair reflection of the issues on which it won”.
MLA has 14 days to appeal the ruling to the full bench of the Federal Court from the date final orders are given by the court.
Today’s judgement did not include final orders – the parties have been provided an opportunity to make submissions on the appropriate orders to deal with the amendments and any final orders regarding MLA’s substantive appeal and costs.
To view the full judgement handed down today on the Federal Court of Australia website click here
Meat & LIvestock Australia has provided the following written response to today’s ruling:
Meat & Livestock Australia (MLA) acknowledges today’s decision in the Federal Court of Australia allowing Branhaven LLC and SelecTraits Genomics LLC to amend their Australian patent application no. 2010202253 in relation to cattle selection methods.
MLA’s intention in opposing this patent, and in undertaking these legal proceedings onbehalf of cattle producers, has always been to protect producers and the genetic services they require to maximise their productivity and to consistently deliver a product that meets customer and consumer expectations.
In its original form, MLA considered the broad nature of the patent posed a significant threat to genetic improvements that enhance the prosperity of our industry.
The initial decision of Justice Beach of the Federal Court in February 2018 upheld MLA’s appeal from an opposition to the grant of the patent on grounds concerning lack of clarity and lack of definition, and a lack of utility. The applicants have been invited to amend the relevant claims of the patent application in order to overcome these objections. The amendments sought effectively narrow the claims of the patent application by incorporating features relating to linkage disequilibrium between SNPs and statistical significance into the claims.
Parties have been provided an opportunity to make submissions on the appropriate orders to deal with the amendments and final orders regarding MLA’s substantive appeal and costs.
MLA remains committed to protecting the genetic advancement of Australia’s beef herd and is carefully considering the decision and any possible appeal in relation to amendments and the aspects of the substantive appeal upon which it did not succeed.