There are concerns research on cattle breeding in Australia could be stifled, following another failed attempt by Australia’s cattle industry to block a controversial genome patent from the US.
- Meat and Livestock Australia has lost another bid to reject a controversial patent
- There are fears the patent will have a chilling effect on genomic research in cattle
- The ruling by the Federal Court may lead to stronger calls for law reform
In a judgment handed down this week, the Full Court of the Federal Court dismissed Meat and Livestock Australia’s (MLA) appeal against two previous decisions, handed down in 2018 and 2019.
At the core of the dispute is a patent, lodged in 2010 by US company Branhaven LLC, that MLA claimed would have a chilling effect on cattle genomic research in Australia.
The patent described using a common scientific technique for identifying valuable genetic traits in cattle, such as fat marbling or milk production.
And MLA was concerned that in its original form, the patent was so broad it could encompass nearly two-thirds of the cattle genome.
While MLA has failed to get rid of the patent, it has succeeded in making it more specific.
“The overall case decision means that Branhaven LLC and SelecTraits Genomics LLC have been forced to wind back the broad scope of their original Australian patent application,” MLA said in a statement.
The organisation is considering the impact of the new, narrower form of the patent.
“While MLA remains concerned by the vague nature of the amended patent application, we are undertaking research to map the reduced patent scope across the Australian bovine genome,” the statement said.
MLA has not said whether, or if, it will take this matter to the High Court.
Intellectual property law specialist and Ashurst partner Nina Fitzgerald said the grounds on which on it could appeal were limited.
The Full Court of the Federal Court was asked to consider two select issues from the two previous rulings by Justice Beach.
“MLA would need to argue that one or both of these conclusions were wrong as a matter of law and that it is necessary in the public interest and for the administration of justice that the High Court intervene,” Ms Fitzgerald said.
“MLA should not be permitted to make new arguments regarding the other grounds of invalidity it chose not to pursue on appeal before the Full Court.”
Queensland University of Technology professor of intellectual property Dr Matthew Rimmer shares MLA’s concerns about the patent.
“I’m concerned that the broad patent covering the use of genetic markers in breeding cattle has an impact on the freedom of Australian researchers and scientists who do work in Australian agriculture,” he said.
In 2015, the High Court of Australia ruled in favour of a Brisbane grandmother who sued a US biotech firm Myriad Genetics, in a case that decided human genetic information which is naturally-occurring and has not been “made” by human action cannot be patented.
Early parallels were drawn between the two matters when MLA’s dispute hit the Federal Court.
MLA used the High Court’s decision in its early arguments, but they were rejected, according to Ms Fitzgerald.
“In this case, the invention was for a method that a human needed to perform and with particular criteria that humans needed to analyse,” she said.
“Also, when the method was conducted it enabled the prediction of whether cows would have particular valuable and commercially significant traits.
“Therefore, the court concluded it was patentable.”
Dr Rimmer said the decision could have a lingering influence on the matter, should it proceed.
“To my mind, there are some tensions between the different the layers of courts in Australia, over their approach to patent law and biotechnology,” he said.
“So I am intrigued about whether or not the High Court itself thinks that the Myriad decision should have a broader operation or whether it should only apply in exceptional circumstances.”
While the patent can proceed to grant in its amended form, throughout the legal process researchers, cattle breeders and politicians have all expressed alarm that it was granted in the first place.
In 2018, former Queensland LNP senator Barry O’Sullivan offered Federal Government resources to help MLA fight the matter, describing the patent as an ‘assault’ on the cattle and dairy industries.
Dr Rimmer said the “very novel” dispute raises larger question about whether legislative change was needed in the agricultural biotechnology space.
“So when this dispute concludes I think there’ll be further pressure within the Federal Government to consider some policy options, to better balance the patent system with how it deals with agriculture,” he said.
“And by contrast, in relation to plants — there are very specific intellectual property systems to deal with plant breeding, but we don’t necessarily have any kind of equivalence in relation to animal breeding.”