Federal Court finishes hearing legal argument in controversial cattle genome case – ABC Online

The Federal Court has finished hearing an appeal against a patent granted to two US companies for identifying genetic traits in cattle.

Research and marketing bodies Meat and Livestock Australia (MLA) and Dairy Australia launched legal action against the patent holders, Cargill USA and Branhaven LLC, after losing an earlier appeal before the Australian Patent Office.

Cargill is a major global commodities giant, but did not defend the appeal, while little is known about Branhaven except that it acquired the patent after it bought many of the assets of a biotechnology company called Metamorphix when it liquidated in 2011.

A hearing into the matter started last month and ended on Wednesday afternoon, lasting six and a half days in total.

MLA, beef and dairy farmers, and livestock researchers allege the patent could restrict access to genomic testing and research into cattle genetics because it could give Cargill and Branhaven the right to license service providers or charge licensing fees for genomic testing.

These concerns were similar to those raised before the High Court in the landmark breast cancer gene case.

University of Queensland intellectual property expert Professor Matthew Rimmer told the ABC the case was a "test of the limits and boundaries" of what is patentable in Australia.

On both sides, some of Australia's top intellectual property lawyers argued before Justice Jonathan Beach, with Christian Dimitriadis SC appearing for Branhaven, and Katrina Howard SC appearing for MLA.

MLA argued before the court the broadest claim in the patent potentially extends to nearly two thirds of the cattle genome.

The patent, first written in 2003 and filed in Australia in 2010, describes a method for identifying genetic traits in cattle through the use of genetic markers called SNPs (single nucleotide polymorphisms and pronounced 'snips').

Genomic testing is increasingly used in the livestock sector to select animals with superior genetic traits (tender meat, better milk production).

(ABC News: Roxanne Taylor)

Genomic testing is increasingly used in the livestock sector to select animals with superior genetic traits (tender meat, better milk production).

It identifies 2,510 specific SNPs (there are billions through the genome), but it also lays claims to a large region (500,000 base pairs of DNA) either side of each of the 2,510 identified SNPs.

Much of the concern about the patent comes from the secondary claim because, although the field of genetics has advanced rapidly since 2003, and many millions more SNPs have been located since then, researchers believe their current work could still infringe on the patent.

This is because it includes the 500,000 base pairs of DNA either side of the SNPs actually identified in the patent.

"If this patent was concerned with human genes, there would be a public outcry," MLA's senior council Katrina Howard SC told the court.

"There's no good reason it should apply to cattle."

While MLA attacked the patent on almost every legal ground, a central pillar of its argument was that the method described for identifying the genetic markers was common knowledge before the patent was written in 2003.

They argued that work being done on the human genome, as well as scientific papers published before 2003, meant methods described in the patent was obvious to skilled geneticist.

But Branhaven said that work to map the bovine genome had just started, and was not finished until 2009 so therefore, the patent describes a significant and noteworthy achievement and invention.

No date has been set for a judgement in the matter.

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Federal Court finishes hearing legal argument in controversial cattle genome case - ABC Online