Meat & Livestock Australia Limited and Dairy Australia Limited v Cargill, Inc. and Branhaven LLC

[2016] APO 26

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Meat & Livestock Australia Limited and Dairy Australia Limited v Cargill, Inc. and Branhaven LLC [2016] APO 26

Patent Application:                   2010202253

Title:Compositions, methods and systems for inferring bovine traits

Patent Applicant:  Cargill, Inc. and Branhaven LLC

Opponent:  Meat & Livestock Australia Limited and Dairy Australia Limited

Delegate:  L. L. Press

Decision Date:  6 May 2016

Hearing Date:  1 July 2015, in Melbourne; further submissions filed on 27 October 2015

Catchwords:  PATENTS – section 59 – construction of claims considered – claim 13 lacks clarity – inventive step – claims are directed to specific SNPs – sufficiency – specification enables addressee to perform all embodiments with new prolonged study – manner of manufacture – if claim 13 were directed to an isolated polynucleotide it would not be a manner of manufacture – the opposition succeeds to the extent that claim 13 lacks clarity – the applicant is given two months from the date of the decision to propose amendments – costs awarded against the opponent

Representation:  Patent applicant:  Craig Smith of Counsel, instructed by Dr Karen Bentley and Mr James Cherry of Freehills, Melbourne.

Opponent:Tom Cordiner of Counsel, instructed by Dr Scott Whitmore and Dr Leigh Guerin of Phillips Ormonde Fitzpatrick, Adelaide.

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application:                   2010202253

Title:Compositions, Methods and Systems for Inferring Bovine Traits

Patent Applicant:  Cargill, Inc. and Branhaven LLC

Date of Decision:  6 May 2016

DECISION

The opposition succeeds to the extent that claim 13 lacks clarity.

I allow the applicant two months from the date of this decision to propose amendments.

I award costs according to Schedule 8 against the opponent, Meat & Livestock Australia Limited and Dairy Australia Limited.

REASONS FOR DECISION

Background

1. Cargill, Inc. and Branhaven LLC (collectively Cargill) filed patent application 2010202253 on 1 June 2010. The application is a divisional application of parent application 2003303599 (now withdrawn), filed on 31 December 2003. The parent application claims priority from US application 60/437, 482 filed on 31 December 2002. Accordingly, the present application is afforded that date as its earliest priority date. Application 2010202253 was advertised accepted on 31October 2013.

1. Meat & Livestock Australia Limited and Dairy Australia Limited (collectively MLA) filed a notice of opposition on 31 January 2014. A statement of grounds and particulars followed on 30 April 2014. The opponent subsequently requested amendment of the statement of grounds and particulars to add additional references of alleged prior art. That request was allowed on 22 May 2014. The parties completed the evidentiary stages on 3 November 2014.

Grounds of opposition

1. The statement of grounds and particulars identified manner of manufacture, novelty, inventive step, utility and the section 40 requirements of lack of sufficiency, lack of fair basis and lack of clarity as grounds of opposition. The opponent did not press novelty or lack of utility at the hearing.

Evidence

1. The evidence in support of the opposition consists of declarations by;

   • Statutory declaration of Frank Nicholas dated 27 July 2014 (Nicholas-1) together with exhibits FWN-1 to FWN-13
   • Statutory declaration of William Barendse dated 28 July 2014 (Barendse-1) together with exhibits WJB-1-1 to WJB-1-14
   • Statutory declaration of William Barendse dated 29 July 2014 (Barendse-2) together with exhibits WJB-2-1 to WJB-2-6
   • Statutory declaration of Scott Gardiner dated 30 July 2014 (Gardiner) together with exhibits SJG-1 to SJG-4

1. The evidence in answer consists of declarations by;

   • Statutory declaration of Graham Plastow dated 30 October 2014 (Plastow) together with exhibits GSP-1 to GSP-5
   • Statutory declaration of Claire Wade dated 31 October 2014 (Wade) together with exhibits CW-1 to CW-3
   • Statutory declaration of Richard Kerr dated 3 November 2014 (Kerr) together with exhibits RK-1 to RK-2

1. The evidence in reply consists of declarations by;

   • Statutory declaration of Frank Nicholas dated 18 December 2014 (Nicholas-2) together with exhibits FWN-2-1 to FWN-2-3
   • Statutory declaration of William Barendse dated 19 December 2014 (Barendse-3) together with exhibit WJB-3-1

Supplementary submissions

1. Summaries of submissions were filed on time. On 27 October 2015, both parties filed further written submissions in response to my request of 16 October 2015 for their views on the relevance of the High Court decision in D'Arcy v Myriad Genetics Inc [2015] HCA 35, to the patentability of claim 13.

Standard of proof

1. The request for examination in relation to the patent application was filed on 10 December 2010. As a consequence, the substantive amendments of the Patents Act 1990 brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 do not apply to the present patent application. This includes the amendment to subsection 60(3A) that allows the Commissioner to refuse a patent application if satisfied on the balance of probabilities that a ground of opposition has been made out. Instead, the onus of proof in this opposition lies with the opponent, who must establish that it is clear that a valid patent cannot be granted (F.Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 at [29], [67]; [2000] FCA 283; 50 IPR 305; Commissioner of Patents v Sherman [2008] FCAFC 182 at [18], [22]; [2008] FCAFC 182; 79 IPR 426).

The subject matter of the specification

Background of the invention

1. The specification is titled “Compositions, Methods and Systems for Inferring Bovine Traits”.

10.  The description explains that many commercially valuable traits in cattle, such as beef marbling and tenderness, are quantitative traits regulated by a combination of genes and environmental factors. Classical breeding strategies have been successfully used for improving the genetic potential of cattle, but the approach has limitations.

Aim of the invention

11.  The specification states there is a need to develop methods and diagnostics to predict the genetic potential of individual animals at an early age, for a range of economically important traits ([0014]; [0022]).

Nature of the invention

12.  The invention relates to a humanized, high density, single nucleotide polymorphism (SNP) map of the bovine genome and the identification of SNPs associated with traits of economic importance ([0052]; [0117]). The map comprises SNP markers distributed throughout the bovine genome at an average density of 0.5cM between any two adjacent markers ([0193]).

13.  The high density map provides a resource for defining variation across the bovine genome and has applications in identifying genes associated with traits. The body of the specification includes descriptions of methods for determining SNPs associated with traits, methods for identifying genes and open reading frames associated with traits, and systems for identifying the presence of SNPs in nucleic acid samples from bovine subjects.

14.  A sequence listing comprising 64,895 bovine genomic sequences forms part of the specification.

The examples

15.  Example 1 describes the generation of the bovine SNP map by whole genome shotgun sequencing using the approach, described by Venter J C et al., (Science 291: 1304-1351 (2001)) which was employed to identify the sequence of the human genome.

16.  The DNA from each of four breeds of cattle was sequenced. The sequenced fragments were assembled and more than 786,000 candidate SNPs were identified. From this set of candidate SNPs, a dense map of more than 242,000 bovine SNPs in fragments syntenic to the human genome was developed. The average distance between markers in the bovine SNP map is 500,000 nucleotides.

17.  Example 2 describes the process undertaken to identify 2,510 SNPs and specific SNP occurrences associated with five particular traits being, fat, marbling, yield and daily weight gain. The SNPs and their associations to the traits are presented in Tables 1A and 1B. Information provided in the tables for each of the 2,510 SNPs includes a sequence identifier (SEQ ID NO) wherein the SNP is positioned at nucleotide 300, and the sequence identifiers of overlapping sequences (contigs) that are located within 500,000 nucleotides of the SNP at position 300.

18.  Example 3 illustrates disequilibrium analysis in relation to several of the SNPs disclosed in Example 2. Table 2 identifies disequilibrium analysis in relation to the position of three specific SNPs which are within 500,000 nucleotides of a reference SNP (MMBT22302) and which are also associated with average daily weight gain. Similarly, Tables 3 and 4 identify respectively, SNPs in linkage disequilibrium (LD) within 500 kb of a particular reference SNP at position 300, and which are associated with vision retail yield and average daily gain.

19.  SNPs within 500kb either side of a SNP associated with a trait, are in LD with the associated SNP. SNPs in LD with a SNP associated with a trait can be used as a proxy to infer associations with the trait of interest.

The claims of the specification

20.  The specification as accepted consists of 15 claims, which are reproduced at Annex A.

Claims construction

21.  The approach to the construction of claims was discussed by Bennett J in H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70, 81 IPR 228 at [118] - [120]:

“the words in a claim should be read through the eyes of the skilled addressee in the context in which they appear … while the claims define the monopoly claimed in the words of the patentee’s choosing, the specification should be read as a whole … it is not permissible to read into a claim an additional integer or limitation to vary or qualify the claim by reference to the body of the specification … terms in the claim which are unclear may be defined or clarified by reference to the body of the specification”.

22.  Before commencing to construe the specification, I note what Middleton J said in Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214, 100 IPR 451 at [139]:

"It is well settled that the Court should, from the outset, approach the task of patent construction with a generous measure of common sense.  The Court must place itself in the position of a person skilled in the relevant art, being the subject matter of the patent.  From this perspective, the patent is to be read as a whole, in the context of the specification and in light of the prevailing common general knowledge and state of the relevant art at the priority date."

23.  In general terms, independent claims 1, 6 to 8 and 12, recite methods that rely on two alternative subsets of SNPs. The first subset relates to SNPs identified at a specific position (nucleotide 300) in specified reference sequences as listed in Tables 1A and 1B. The second alternative relates to SNPs which are within about 500,000 nucleotides or less of the SNP at position 300. This later subset of SNPs is not identified in the specification.  

24.  There are a number of points of difference between the parties on the proper construction and meaning of several of the claims.

Claim 1

25.  Independent claim 1 defines a method for identifying a trait in a bovine subject from a sample of the subject’s nucleic acid. The method necessarily comprises identifying in the nucleic acid sample, an occurrence of at least three SNPs that are associated with the trait.

26.  Claim 1 also specifies that:

• the at least 3 SNPs associated with a trait occur in more than one gene; and either

oat least one of the SNPs must correspond to position 300 of any one of SEQ ID NOS: 19473 to 21982; or alternatively,

othe SNP is about 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS: 19474 to 21982.

“identifying a trait”

27.  The scope of the claim extends to any trait. The specification defines a trait as a characteristic that manifests itself in the phenotype ([0090]).

28.  At the hearing, relying on the evidence of Dr Barendse, MLA submitted that it was not possible to identify a trait at the priority date of the claimed invention (Barendse-2 at [0026] to [0028]). In their view, it was only possible to predict or infer whether a SNP was associated with a trait. Cargill disagreed, and argued that the meaning of “identifying a trait” is synonymous with “inferring a trait”. 

29.  I note that the title of the application refers to “inferring bovine traits”, and the specification provides a definition of “infer” or “inferring” when used in reference to a trait. The specification explains what the term means, drawing a conclusion about the trait on the basis of analysing nucleotide occurrences of the SNP(s) and the known relationship of the SNP(s) and the trait of interest ([0079]). No definition is provided in the specification as to the meaning of “identifying a trait”.

30.  Cargill’s expert, Dr Plastow, acknowledges that in the strictest sense, “inferring” is the more correct term. However, he concludes that the skilled person would regard the intention of the phrase “identifying a trait”, to be the same as “inferring a trait” (Plastow at [69]). Dr Plastow notes, that Dr Barendse in his second declaration at paragraph [27], understands the opposed application to describe and claim methods for inferring traits (Plastow at [69]).

31.  Given the disclosure of the specification, and Dr Plastow’s evidence, I consider that the phrase “identifying a trait” has the same meaning as “inferring a trait”.

“the at least three SNPs are associated with a trait”

32.  MLA noted the specification at paragraph [0052] provides a description of an “associated SNP” as being a SNP associated with a trait at a confidence level at 0.01 or greater. However, in their expert’s view, this statement is in conflict with the later statement in the specification at paragraph [0080], where SNPs associated with a trait are those SNPs which show a statistical association of at least 80% to 99% confidence, or a probability of insignificance less than 0.05 (Barendse-2 at [57]). Cargill submitted that the specification at paragraph [0080] is referring to one way of using the high density bovine SNP map as a tool to identify SNPs associated with a trait, as opposed to presenting a definition of an associated SNP.

33.  The specification at paragraph [0052] relates to a confidence level for identifying SNPs associated with traits, whereas paragraph [0080] describes a possible way to apply known statistical methods to determine relationships between SNP nucleotide occurrences associated with traits. I do not understand paragraph [0080] as to be defining an absolute statistical threshold for determining whether a trait is or is not associated with a SNP.

34.  I conclude that “associated with a trait” means the trait is statistically determined to be significantly associated with a trait.

“the at least three SNPs occur in more than one gene”

35.  In construing claim 1, I agree with the experts for both parties, who consider that the requirement that the at least three SNPs occur “in more than one gene” means each SNP is located in a different gene (Barendse-2 at [59]; Plastow at [79]). 

36.  MLA submitted that the boundaries defining a gene can be difficult to establish and therefore the skilled person might misunderstand the requirement in the claim for the at least three SNPs occur in more than one “gene”.

37.  The specification does not provide a dictionary definition of a gene and accordingly the term must be given the meaning which the skilled person would give to “gene” in light of their own general knowledge and the context in which “gene” is used in the description.

38.  Dr Barendse says at paragraph [53] of Barendse-2:

“In my view, a gene generally refers to both introns and exons and associated regulatory regions (such as promoters) of a particular coding sequence, and DNA immediately 5’ and 3’ to the coding sequence (the 3’ and 5’ untranslated regions) are involved in the regulation of the gene. However, it is difficult to establish with certainty the precise bounds of the 5’ and 3’ untranslated regions. Furthermore, some genes are transcribed in multiple open reading frames and therefore the same piece of DNA can code for multiple distinct proteins. Therefore, it would not have been clear in 2002 if a SNP occurred in a gene or not.”  

39.  In his third declaration, Dr Barendse states that the inventors meant “more than one gene” to mean “more than one location of the genome” (Barendse-3 at [28]). Dr Barendse, however, does not make any submissions in support of this view.

40.  I cannot reconcile Dr Barendse’s two different views. Although it is no doubt the case that SNPs in the bovine genome would also occur in intergenic regions of the genome as well as in genes and regulatory regions, the skilled person would not understand “gene” to be synonymous with “genome”.

41.  The definition of a “gene” as put by Dr Barendse in his second declaration, is not contradicted by Dr Plastow, who in his declaration at paragraph [79] states:

“The term “more than one gene” would itself appear to be straightforward. The fact that the precise boundaries of a gene may not be known is a general issue in the field of genomics, and not something particular to this application.”

42.  In my view, it follows that insofar as the claim recites the at least three SNPs occur in more than one gene, the opposed application requires that each one of the at least three SNPs occurs in a different gene, and a gene is as defined by Dr Barendse in his second declaration. The scope of claim 1 does not extend to intergenic SNPs.

“at least one of the SNPs must correspond to position 300 of any one of SEQ ID NOS: 19473 to 21982, or
the SNP is about 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS: 19474 to 21982.”

43.  I construe the claim as defining two alternative methods. In the first alternative, the at least one SNP is required to be a SNP positioned at nucleotide 300 in any of the 2,510 defined sequences identified in SEQ ID NOS: 19472 to 21982. The first alternative thereby defines specific SNPs by their specific location.

44. The second alternative requires that the SNP is about 500,000 nucleotides (500kb) or less from position 300 in any one of the defined 2,510 sequences. The specification defines “about” as meaning within ten percent of value [0039]. This definition is in keeping with the usual meaning given to the term in patent specifications. The second alternative requires the SNP is located within up to 550,000 nucleotides of the SNP at position 300.

45.  Although claim 1, does not recite that SNPs within about 500,000 nucleotides of a SNP associated with a trait and positioned at nucleotide 300, are in linkage disequilibrium (LD) with the specific SNP at position 300, I consider that the skilled person would understand that, in the context of the disclosure of the specification, a SNP within 500kb of the reference SNP is equivalent to a SNP that is in LD with the reference SNP at position 300.

46.  Dr Plastow, when discussing claim 1, states at [68]:

“… (claim 1) requires that SNP to be at position 300 of the defined sequences, or for the SNP to be within 500,000 of that position. In other words, for the SNP to be in linkage disequilibrium (LD) with position 300. A SNP in LD with position 300 could be associated with and therefore a marker of the trait in question. The number of SNPs that satisfy the requirement could be quite limited and is not therefore all 500,000 nucleotides.”

47.  I note that only one of the three SNPs is required to be chosen from any one the SNPs located at nucleotide 300 or alternatively within 500kb of the SNP positioned at 300 in the defined sequences. That is, either one or both of the remaining two of three SNPs could be any other SNP (in different genes), and these SNPs could be known SNPs or SNPs yet to be identified.

48.  My findings with respect to the construction of claim 1, also apply to independent claims 6, 7, 8 and 12 and claims that depend thereon insofar as they recite at least one SNP corresponding to position 300 of any one of the defined sequences or alternatively the SNP is within 500,000 nucleotides of the SNP positioned at 300 in the defined sequences.  

Claim 2

49.  At the hearing MLA questioned whether claim 2 should be construed as including SNPs within 500kb of the reference SNP at 300 as defined in claim 1, as an element of the claim. I do not consider claim 2 to import this feature from claim 1.  This is because claim 2 is construed as limiting the SNPs to specific occurrences of nucleotides at position 300 in the defined sequences as described in Table 1A.

50.  SNPs within 500kb of a reference SNP at position 300, and thereby SNP occurrences at such locations, are not disclosed in the specification (including Table 1A). Accordingly, this aspect is not a feature of claim 2.

Claims 3 to 5

51.  Claims 3 to 5 depend from claims 1 and 2 and refer to an increase in the number of SNPs required to be identified from at least three to at least five, seven or ten respectively.

Claim 6

52.  Independent claim 6 embodies a method of sorting one or more bovines on the basis of the identification of SNP occurrences as defined in claim 1. MLA contended that it was not possible to sort one bovine subject from itself. Albeit the case, I do not consider the scope of the claim to be ambiguous: the skilled person would readily construe the claim as a method of sorting or selecting bovines based on the identification of traits associated with at least 3 SNPs as defined in the claim.

Claims 7 and 11

53.  Independent claim 7 relates to a method for cloning a bovine with a desired trait. The opponent submitted that the identification of SNPs as defined in part (1) has no working relationship with parts (a) and (c). They contended the claim defined nothing more than the known process of cloning cattle.

54.  I consider the skilled person would give a purposive construction to the claim and readily construe it as defining a method for cloning bovines with desirable traits wherein the method incorporates the identification of the defined SNPs associated with traits in the animal’s nucleic acid, and then as per step (b) a progenitor cell from the bovine with the desired trait is isolated, followed by generation of a cloned animal harbouring the desired trait.

55.  Claim 11 encompasses a bovine animal generated by the method of claim 7.

Claim 8

56.  Claim 8 is construed as a method for inferring the presence of a trait in a bovine by selectively hybridising a sample of the bovine’s nucleic acid to a system. The system comprises hybridizing specific binding pairs corresponding to the at least three SNPs as recited in the claim. I do not consider the use of “a” in the phrase “where selective hybridization of the nucleic acid sample to   the system indicates the presence of a SNP associated with a trait”, instead of “the trait” renders the claim unclear.

Claims 9 and 10

57.  These claims narrow any one of the methods of the previous claims to specific traits. Claim 10 defines the five specific traits, fat thickness, retail yield, tenderness, marbling, or average daily gain, exemplified in the specification.

Claim 13

58.  Claim 13, as drafted, does not depend in a meaningful fashion from the method of claim 8 or any other claim. This claim is unclear. However, I consider the intention of claim 13 is to define isolated and specific polynucleotides per se which harbour at least one SNP in a gene where the SNP is associated with a trait, and the SNP corresponds to position 300 of any one of SEQ ID NOS: 19473 to 21982, or the SNP is about 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS: 19474 to 21982.

Claim 14  

59.  Claim 14 is limited to a polynucleotide when used in any one of the methods of claims 1 to 10, and as distinct from isolated polynucleotides per se. The polynucleotides comprise at least 20 contiguous nucleotides of the bovine genome, or a complement of the same, and necessarily comprise polynucleotide sequences that are within 500kb or less nucleotides of the reference SNPs at position 300, but do not include isolated polynucleotides bearing the SNP at position 300. Therefore the claim embodies the use of isolated polynucleotides bearing SNPs associated with traits.

Claim 15

60.  Claim 15 is an omnibus claim, limiting the methods of claims 1 or 6 to 8, to those substantially as described in the specification.

Clarity

61.  Subsection 40(3) requires that the claims must be clear. A claim will lack clarity if a third party could not ascertain whether a proposed action would fall within the ambit of the claim (Monsanto Co v Commissioner of Patents (1974) 48 ALJR 59).

62.  The opponent stated that claim 1 (and independent claims 6, 7, 8 and 12 and all the claims depending thereon) lacks clarity because it is unclear what is meant by:

• gene;
• associated; and

• about 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS: 19473 to   21982.

“Gene”

63.  In construing the claims, I have already found that “gene” refers to exons and introns, both 5 prime and 3 prime regulatory regions associated with the gene (eg. promoter and 3 prime untranslated sequence), and any difficulty in the determination of the exact boundaries of a gene,  is a matter generally associated with the art, rather than a  problem particular to the claimed invention. Therefore, I consider the claims are clear in regard to their reference to a gene.

“Associated”

64.  I have also decided above that “associated” means that a SNP is taken to be associated with a trait when it is statistically determined to be significantly associated with the trait, using methods known to those skilled in the art.

65.  In his evidence, while Dr Plastow agrees that for a SNP to be considered to be associated with a trait, it is required that the association be statistically significant, he nonetheless does not see that this renders the claim unclear (Plastow at [79]). I also consider that the skilled person would have no practical difficulty in determining whether an action fell within the scope of claim 1 and the other independent claims, given statistical methods for conducting association studies are known in the art. I therefore conclude that the claims are not unclear with respect to the use of the term “associated”.

“About 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS: 19473 to 21982”

66.  The opponent submitted that the skilled person would not be able to determine if any SNP fell within 500kb of the reference SNP at nucleotide position 300 in any one of the defined sequences.  In their view, the skilled person could not locate the position of any SNP in the bovine genome because at the time of filing, the bovine genome had not been determined (Barendse-2 at [52]).

67.  Tables 1A and 1B clearly identify the reference sequences harbouring the SNP at position 300, along with overlapping sequence (contigs) within 500kb or less from the reference SNP at position 300. Therefore, I consider the claim to be clear and the skilled person would understand what was meant by 500kb or less nucleotides from reference SNP.

68.  Methods for determining the SNPs on separate contigs within 500kb of the reference SNP at position 300 are disclosed in the specification ([0036]), therefore it is not necessary for the skilled person to rely on the availability of a map of the bovine to determine SNPs falling within about 500 kb of a reference SNP. Accordingly, the skilled person could determine what SNPs fell within the limitation of 500kb of the SNP at nucleotide position 300 of the defined sequences. 

Conclusion on clarity  

69.  It has not been established that any one of claims 1 to 12, 14 and 15 lack clarity.

70.  As decided previously, claim 13 does not append in any meaningful fashion from any other claim and therefore lacks clarity.

Inventive Step

71.  It is a requirement of subsection 18(1) of the Act that the invention, so far as claimed in any claim, involves an inventive step. Subsection 7(2) states that an invention is taken to involve an inventive step unless it would have been obvious to a person skilled in the art in the light of common general knowledge, considered alone or together with the information specified in subsection 7(3). This information includes one piece or a combination of pieces of prior art information, being information that the person skilled in the art could reasonably expected to have ascertained, understood and regarded as relevant.

72.  The test for obviousness is to ask if it would have been a matter of routine to proceed to the claimed invention. In Wellcome Foundation Ltd v V.R. Laboratories (Aust) Pty Ltd [1981] HCA 12 at [45]; 148 CLR 262 at 286, Aicken J stated:

“The test is whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not.”

73.  The High Court in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 at 433 also approved the use of the “Cripps question”:

“Would the notional research group at the relevant date, in all the circumstances, which include a knowledge of all the relevant prior art and the facts, directly be led as a matter of course to try the invention as claimed in the expectation that it might well produce a solution to the problem.”

74.  The Opponent submitted that the claimed invention lacks an inventive step in light of the common general knowledge when considered alone, or in view of each of the following documents considered together with the common general knowledge:

(i)“A review on SNP and other types of molecular markers and their use in animal genetics”,Vignal A et al, Genet Sel Evol 2002, 275 – 305 (Vignal)

(ii)“The Sequence of the Human Genome”, Venter J C et al, Science 2001, 291, 1304-1351 (Venter), if it were not considered to be part of the common general knowledge.

75.  The Vignal publication reviews the use of various molecular markers, including SNPs, in constructing genome maps, genotyping and identifying the genes underpinning complex phenotypic traits in animals. Several approaches used to identify and map SNPs in humans are detailed (section 3.2) (although none of the approaches used are the same practical approach used by Venter). The authors remark that SNP identification and analysis in animals was not as extensive compared with human studies (section 3.3).

The person skilled in the relevant art

76.  Both parties accepted that the person skilled in the art in this case is a person or team of people with experience in livestock breeding and improvement and/or molecular biology and genetics, particularly quantitative genetics.

The problem  

77.  The specification at [0008] refers to a need existing in the art to identify cattle with superior genetic potential for desirable characteristics, and at paragraph [0014] there is mention of the need for methods to determine the genetic potential of individuals for a range of economically important traits.

78.  At the hearing Mr Smith suggested the problem as a need for a useful marker tool to determine the genetic potential of cattle for commercial traits.

79.  The Opponent’s submissions on the problem to be solved are in keeping with the disclosure of the problem in the specification (MLA at [64] and [113]).

80.  I do not agree with Mr Smith’s view of the problem. I consider that the solution to the problem was the provision of the SNP map tool. Accordingly, I consider the problem addressed in the specification is the provision of means to determine the genetic potential of bovines for a range of important traits.

Inventive step based on CGK alone

The common general knowledge in the art

81.  The concept of common general knowledge was described in Minnesota Mining and Manufacturing Company and Another v Beiersdorf (Australia) Limited [1980] HCA 9; 144 CLR 235 at 292 as involving:

“The notion of common general knowledge itself involves the use of that which is known or used by those in the relevant trade. It forms the background knowledge and experience which is available to all in the trade in considering the making of new product, or the making of improvements in old, and it must be treated as being used by an individual as a general body of knowledge.”

82.  The common general knowledge covers material that is retained in the memory of the skilled person, as well as material that the person knows of, and to which they might refer as a matter of course, or habitually consult. The material could include standard texts and handbooks (ICI Chemicals & Polymers Ltd v Lubrizol Corporation Inc [199] FCA 345; 45 IPR 577 at [112]).

83.  MLA relied on the declarations of Professor Nicholas and Dr Barendse, to found a list of matters which they regarded as commonly known by those working in the relevant field. These matters included:

• it was desirable for bovine subjects to have particular well known and commonly measured and selected traits;
• marker assisted selection (MAS) of bovines with particular traits was well known and practiced;
• multiple markers, including those occurring in genes, could infer a trait in an animal;
• SNPs were an ideal marker for MAS;
• methods of identifying SNPs were known;
• methods for conducting whole genome association studies for particular traits were available;
• the use of SNP detection systems such as microarrays for large scale genotyping; and
• the commercial application of markers and SNPs includes animal breeding and selection and cloning of livestock. 

Is Venter common general knowledge in the art?

84.  The Venter article reports the sequence of the human genome (known as the Celera sequence of the human genome) generated by whole genome shotgun sequencing of the DNA of five individuals. Information disclosed in the article includes a genome wide examination of human SNPs and the generation of a human SNP map (pages 1330-1334). The method to identify human SNPs relied upon an alignment of the Celera human genome sequence with sequence data of the human genome available from the publicly funded Human Genome Project (PFP).

85.  MLA submitted that the statement in the specification at paragraph [0192] referring to the Venter article, read together with other documents supports the premise that Venter is common general knowledge in the art.

86. MLA relying on the evidence of Professor Nicholas, also submitted that there is much transfer of knowledge between those working in the fields of animal and human genetics (Nicholas-1 at [26]. The opponent also contended, that given the work of Venter et al. was a significant publication in the field of genetics and it was published in a significant journal, the Venter article (and methods therein) would have been well known to those working in the field of livestock improvement.

87.  Cargill argued that the reference to Venter in the specification is not in the context of an admission of common general knowledge. The applicant also drew attention to the express disclaimer of admission at paragraph [0211] in the specification.

88.  I accept that skilled persons working in the area of livestock improvement and animal genetics and/or molecular genetics would have had an awareness of the Venter article at the priority date of the opposed application. However, the state of the common general knowledge is a question of fact which must be determined on the basis of expert evidence.

89.  MLA’s expert, Professor Nicholas, in discussing Venter in Nicholas-1 at [73] states:

“A person skilled in the art would understand that the experience gleaned from the human genome sequence analysis would equally be applicable to the cattle genome.”

90.  Although Professor Nicholas’s statement is not the strongest possible assurance that Venter is common general knowledge, in absence of expert evidence to the contrary, I accept that Venter is part of the common general knowledge in the art.

Is the invention obvious?

91.  The gist of MLA’s argument formulated with respect to inventive step is that the applicants have employed routine methods, in a routine manner to address the problem, and thereby would have inevitably arrived at the bovine SNPs. Therefore the claimed methods of using the identified SNPs lack an inventive step (MLA at [113] to [115]).

92.  The applicant agreed as a “general proposition”, with much of the opponent’s submissions regarding common general knowledge in the art. However, Cargill disagreed with the opponent’s premise that at the priority date, it was common general knowledge that SNPs were an ideal marker for MAS and that large scale SNP genotyping was common practice in the art.

93.  I do not see that the question of obviousness is properly determined by assessing whether SNPs, as opposed to other markers, were an ideal choice or otherwise. I consider that the evidence establishes that it was common general knowledge in the art that SNPs would be useful markers to conduct genome wide association studies and infer/identify traits in bovines, and that the skilled person would pursue a known or routine pathway to identify SNPs and make associations with traits, when challenged with the stated problem.

94.  However, the claimed methods are directed to applications of specific SNPs and although the skilled person would use routine methods to identify SNPs, the experts for both parties agree that the SNPs ultimately identified by any method, depends on factors such as the breeds selected, the number of breeds selected, and the number of individual animals sampled (Barendse-1 at [46]; Plastow at [51] and [56]). 

95.  To me it seems contradictory to consider that an outcome (specific SNPs), that depends on the selection of animal breeds and individuals in herds, can be characterised as an inevitable result, albeit that methods to identify the SNPs and establish their association with traits are common knowledge in the art.

96.  The evidence does not establish that the person skilled in the art in seeking to solve the problem, would be directly led to the specific SNPs as defined in claim 1 in view of the common general knowledge alone.

Inventive step based on Venter and Vignal

Was the invention obvious in light of Venter?

97.  If I am wrong in respect of Venter being part of the common general knowledge, it has no bearing on the finding regarding inventive step. The evidence shows that the SNPs that would be identified depend on the factors discussed above. Consequently it would not have been a matter of routine in the light of Venter to arrive at the specific SNPs as defined in claim 1.

Was the invention obvious in light of Vignal?

98.  The Vignal publication reviews the use of various molecular markers, including SNPs, in the construction of genome maps, genotyping and identifying the genes underpinning complex phenotypic traits in animals. Several approaches used to identify and map SNPs in humans are detailed (section 3.2).

99.  My finding above disposes of the issue of inventive step. Since the claimed methods rely on SNPs that were not the inevitable result of routine methods, citations that disclose the use of SNPs in gene mapping and methods for identifying SNPs etc. although regarded as relevant, do not establish obviousness.

1. I conclude that the claimed invention involves an inventive step.

Section 40(2)(a) – Sufficiency

1. MLA submitted that the Full Federal Court decision in Tramanco Pty Ltd v B P W Transpec Pty Ltd (2014) FCAFC 23, 105 IPR 18 (Tramanco) is relevant to the consideration of whether the description of the opposed application contains sufficient detail for the skilled addressee to perform the invention. 

1. In Tramanco at [207] Nicholas J observed that the High Court, in both Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 (Kimberly-Clark) and Lockwood Security Products Pty Limited v Doric Products Pty Limited [2004] 217 CLR 274 (Doric), addressed the sufficiency of product claims. His Honour went on to suggest, but did not conclude, that some types of claims, including a method claim specifying alternative outcomes, might warrant a different approach compared to the approach adopted in Kimberly-Clark and Doric. A finding that the description is sufficient when it doesn’t enable the use of the method to achieve all alternative outcomes, seemed to his Honour, “wrong in principle”. 

1. Be that as it may, I do not regard Tramanco as relevant for determining whether the description of the opposed application is sufficient.

1. The test for sufficiency laid down by the High Court in Kimberly-Clark and Doric is not expressed as being limited to certain types of inventions, and neither decision provides any consideration of exceptions or circumstances in which a different approach to sufficiency might prevail. Therefore, the test to be applied in the present case is as formulated by the High Court in Kimberly-Clark at [17]:

“The question is, will the disclosure enable the skilled addressee of the specification to produce something within each claim without new inventions or additions or prolonged study of matters presenting initial difficulty?”

1. It follows that the description will be sufficient if it enables one embodiment for each claim without undue effort. Contrary to MLA’s submission, there is no requirement that for each relevant claim, the description must enable an embodiment based on a SNP positioned at nucleotide 300, as well as an embodiment based on a SNP positioned 500kb or less from the nucleotide positioned at 300, in order for the specification to be sufficient. It is also not necessary for the description to provide an enabling disclosure of SNPs associated with each and every possible bovine trait.

1. Example 2 in the specification describes the methods undertaken to identify/validate SNPs associated with five traits, being tenderness, fat, marbling, yield and/or daily gain. 

1. The information provided in Tables 1A and 1B includes the identification of 2,510 SNPs, each positioned at nucleotide 300 in a specific reference sequence, which are associated with one or more of the aforementioned traits. Both tables also list overlapping (contig) sequences that are located within 500kb of the specific SNPs located at nucleotide 300.

1. Tables 2 illustrates disequilibrium analysis in relation to the position of three specific SNPs which are within 500kb of an index SNP (MMBT22302), and which are also associated with average daily weight gain. Similarly, tables 3 and 4 identify respectively, SNPs within 500kb of an index SNP associated with vision retail yield and SNPs within 500kb of an index SNP associated with tenderness.

1. Having regard to the examples and tables alone, it is plain to see that the description provides a disclosure to enable the skilled person to carry out methods for identifying/inferring a trait by identifying at least 3 SNPs associated with the trait.

1. However, there is no information provided in the specification as to if any of the identified SNPs determined to be associated with one of the five exemplified traits, occur, as a matter of fact, in more than one gene.[1]

   [1] The evidence establishes two SNPs present in the µ-calpain gene and located within 500 kb of the SNP corresponding to position 300 of SEQ ID NO: 20558, are associated with tenderness (Barendse-1at [51]).

1. MLA submitted that the skilled person would be required to undertake prolonged study and experimentation to identify whether the at least three SNPs were located in more than one gene (Barendse-2 at [46] and [50]).

1. The Applicant noted that the evidence of Dr Barendse at paragraph [46], relates to embodiments focused on the identification of SNPs within 500 kb of the index SNPs. They also suggested that the evidence was premised on the incorrect view that all SNPs for all possible traits are required to be enabled for the test for sufficiency to be satisfied.  Cargill submitted that for any one of the five exemplified traits, the skilled addressee could choose all 3 SNPs associated with the trait, from the particular SNPs listed in Tables 1A and 1B, rather than identify SNPs within 500 kb of the listed SNPs.

1. I have previously decided that a “gene” in the context of the opposed claims, refers to 5’ promoter sequences and 3’ prime untranslated sequence in addition to exon and intron sequences. I also agreed with the evidence of Dr Plastow that defining the 5’ and 3’ boundaries of a gene is a general issue in the art (Plastow at [79]). However, although the skilled person could practically, for any given SNP, determine if the SNP occurred within the boundaries of a gene or not using known methods, with respect to sufficiency, the question to be decided is whether prolonged effort and experimentation is required to make this determination.

1. Although the evidence indicates there was no bovine genetic map available at the priority date of the invention, identifying the location of bovine genes by routine methods could be used to determine which of the SNPs, including those identified in Tables 1A and 1B, are in fact located in a gene.

1. The specification states at numerous passages that genes can be identified by known methods such as determining whether a target region associated with a SNP corresponds to an open reading frame (description at [0029]; [0134]; [0136] and [0148]). In the specification at paragraph [0036] there is a description of how the skilled person could identify SNPs within 500kb of the reference SNP at position 300. I am satisfied that the disclosure enables the addressee of the specification to perform all embodiments of the invention without new inventions or prolonged study of matters presenting initial difficulty.

1. MLA has not discharged the onus of establishing that any claim of the opposed specification is not fully described.

Section 40(3): Fair basis

1. It is a requirement of subsection 40(3) of the Act that the claims must be fairly based on the matter described in the specification.  The High Court in Doric at [69] approved the words of Gummow J in Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 95:

   “the question is whether there is a real and reasonably clear disclosure in the body of the specification of what is then claimed, so that the alleged invention as claimed is broadly, that is to say in a general sense, described in the body of the specification”

2. The High Court in Kimberly-Clark at [15] and Doric at [57] approved the principle provided by Barwick CJ in Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 at [6]; (1994) 180 CLR 236 at 240:

“The question whether the claim is fairly based is not to be resolved, in my opinion, by considering whether a monopoly in the product would be an undue reward for the disclosure.  Rather, the question is a narrow one, namely whether the claim to the product … as expressed, travels beyond the matter disclosed in the specification.” 

At least three/five/seven/ten SNPs associated with a trait in more than one gene

1. MLA contended that the specification, when properly construed, does not disclose a threshold or specific number of SNPs, or that the SNPs must be located within a gene. MLA submitted that there is only a real and reasonably clear disclosure of inferring a trait using SNPs set out in Table 1A and Table 1B.

1. The opponent drew attention to paragraph [0114] in the specification where it is recited that “at least 2 of the single nucleotide polymorphisms occur in different genes” and submitted that its significance was only that of a stray remark.

1. However, the specification is replete with references to the feature of SNPs in a gene or SNPs located in different genes, (specification at [0085]; [0126]; [0142]; [0142] and [0148]).

As noted by the Applicant at the hearing, the skilled addressee would bring the notion of “polygenic” to the invention as it is logical and sensible. All experts agree that reliability of the claimed methods is greater if the number of SNPs is improved (Nicholas-1 at [95] and [107]; Barendse-1at [21]; Plastow at [28]; Kerr at [9]).   

1. In my view there is a real and clear description in the specification of SNPs occurring in at least three (or more) genes.

SNPs associated with a trait about 500, 000 or less nucleotides from position 300 of any one SEQ ID NOS: 19437 to 21982 

1. The applicant submitted that with respect to this second alternative, the claim reaches through to SNPs that are yet to be identified (MLA [193] and [198]). Cargill submitted the specification provided a clear disclosure of this element of the claims at paragraphs [0126] and [0127].

1. The claims are drawn to methods of using the SNPs within 500kb of the reference SNP at position 300 and yet to be identified. Given that the SNPs are required to be associated with a trait and used for a particular purpose or practical purpose such as identifying/inferring traits in bovines, or sorting bovines, the claims do not travel beyond the subject matter disclosed in the specification.

1. I have already found previously that the skilled person would consider that in light of the disclosure of the specification, SNPs within about 500kb of a SNP associated with a trait and positioned at nucleotide 300 would be in linkage disequilibrium (LD) with the specific SNP at position 300.

1. MLA contended not all SNPs within 500kb of a reference SNP at position 300 would be in LD with the reference SNP and could be associated with a different trait (Barendse-2 at [41]). Even if this is so, this does not impact adversely on the fair basis of the claim because the test for fair basis requires consistency between the claims and the description and SNPs within 500kb of the reference SNP at position 300 which are not associated with the same trait as the reference SNP are not in the scope of the claim.

1. In my view there is a real and reasonably clear description in the specification of SNPs occurring within about 500kb of the reference SNP at position 300 in any one of SEQ ID NOS: 19437 to 21982.

Manner of Manufacture

1. Subsection 18(1)(a) requires that an invention must be a manner of manufacture within the meaning of section 6 of the Statute of Monopolies. Manner of manufacture is assessed by asking whether the claimed invention lacks the necessary quality of inventiveness on the face of the specification (NV Philips Gloeilampenfabrieken v Mirablla International Pty Ltd [1995] HCA 15 at [9]; (1995) 183 CLR 655).

Obvious on the face of the specification

1. MLA submitted that the claimed methods for identifying or inferring a trait in a bovine subject, are obvious on the face of the opposed specification, because they are applications of the methods which the specification identifies as known (MLA [104]).

1. Cargill referred to the comments of Black CJ and Lehane J in Bristol Myers Squibb Company v FH Faulding & Co Ltd (2000) 97 FCR 524, 46 IPR 553 at [45]:

“it is not easy to envisage circumstances in which a claimed invention may lack the threshold requirement of inventiveness, but yet involve (for the purposes of s 18(1)(b)(ii)) an inventive step.”

1. The opposed claims recite methods that rely on specific SNPs which the specification does not identify as known, and there is no challenge to the novelty of the claims. I have also found the subject matter of the claims to be non-obvious. Therefore I agree with Cargill: MLA has not established that the claims do not define a manner of manufacture on the basis that they are obvious on the face of the specification.

Claim 7 does not work

1. MLA submitted claim 7 contravenes subsection18(1)(a) because it fails to provide a new effect resulting from working the invention (MLA [106]). It was argued that there is no interworking relationship between identification of the SNPs as recited in step (a) and the processes of isolating a progenitor cell from the bovine (step (b)) and cloning a bovine from the progenitor cell (step (c)). It follows, MLA contended, that the claim, on the face of it, merely relates to known procedures and practices of cloning cattle. This argument essentially flows from Dr Barendse’s interpretation of claim 7 (WJB-2 at [61]).

1. I have previously provided a purposeful construction of claim 7 and found that the claim does not lack clarity. The claim is novel and inventive and also a manner of manufacture.

Claim 13

1. In response to my request, on 27 October 2015, both parties filed further written submissions regarding the relevance of D’Arcy v Myriad Genetics Inc [2015] HCA 35, to the patentability of claim 13.

1. In D’Arcy v Myriad Genetics Inc [2015] HCA 35 at [89], the majority decided that if information in an isolated nucleic acid is the same information as that contained in the DNA of the subject from which the nucleic acid was isolated, then the isolated polynucleotide is not patent eligible.

1. I have already decided claim 13 does not depend in any meaningful way from claim 8, or any other of the accepted claims. However, notwithstanding this ambiguity, if the applicant’s intention was to claim isolated polynucleotides harbouring at least one of the SNPs corresponding to position 300 of any one of SEQ ID NOS: 19473 to 21982, or a SNP within 500kb of the index SNP, the claimed isolated bovine polynucleotides amount to genetic information which has not been made. Consequently, the isolated polynucleotides would not be a manner of manufacture. 

Conclusion

1. The opposition fails on all grounds except for a minor issue of clarity of claim13 which can be rectified by amendment.

Costs

1. The applicant stated that, given that in excess of 130 documents were raised in the statement of grounds and particulars, but only two documents were considered relevant to inventive step in the opponent’s written submissions, they should be entitled to costs as they had been put to some effort to address grounds put forward in the SGP.

1. The opponent considered that the number of documents was not relevant and they were relied upon to identify common general knowledge.

1. As the opposition has only been successful on a minor ground of clarity of claim 13 which the applicant can overcome by amendment to remove the claim, I award costs according to Schedule 8 against MLA.

L. L. Press
Delegate of the Commissioner of Patents

Annex A: The claims

1. A method for identifying a trait of a bovine subject from a nucleic acid sample of the bovine subject, comprising identifying in the nucleic acid sample an occurrence of at least three single nucleotide polymorphisms (SNPs) wherein the at least three SNPs are associated with the trait, and wherein the at least three SNPs occur in more than one gene

and wherein at least one of the SNPs corresponds to position 300 of any one of SEQ ID NOS: 19473 to 21982, or

the SNP is about 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS: 19473 to 21982.

1. The method of claim1, wherein the at least one SNP is selected from at least one of the SNPs and nucleotide occurrences indicated in Table 1A.

1. The method of claim 1 or 2, wherein occurrences of a least five SNPs are identified.

1. The method of claim 1 or 2, wherein occurrences of a least seven SNPs are identified.

1. The method of claim 1 or 2, wherein occurrences of a least ten SNPs are identified.

1. A method for sorting one or more bovine subjects, comprising:

a)identifying a trait for a first bovine subject from a nucleic acid sample of the first bovine subject, by a method comprising identifying an occurrence of at least three single nucleotide polymorphisms (SNPs) wherein the at least 3 SNPs are associated with the trait, and the at least three SNPs occur in more than one gene, wherein at least one SNP corresponds to position 300 of at least one of SEQ ID NOS: 19473 to 21982, or the SNP is about 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS:19473 to 21982; and

b)sorting the first bovine subject based on the identified trait, and optionally repeating steps a) and b) for additional subjects.

1. A method for cloning a bovine subject with a desired trait, comprising:

identifying an occurrence of at least three single nucleotide polymorphisms (SNPs) wherein the at least 3 SNPs are associated with the trait, and the at least three SNPs occur in more than one gene, wherein at least one SNP corresponds to position 300 of one of SEQ ID NOS: 19473 to 21982, or the SNP is about 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS: 19473 to 21982;

b)        isolating a progenitor cell from the bovine subject; and 

c)        generating a cloned bovine from the progenitor cell.

1. A method of inferring a trait in a bovine, comprising hybridizing a nucleic acid sample from a bovine subject to a system wherein the hybridizing comprises: a substrate; and specific binding pair members corresponding to a series of at least three SNPs, wherein the at least 3 SNPs are associated with a trait in the bovine subject, and the at least three SNPs occur in more than one gene, wherein at least one of the SNPs corresponds to position 300 of one of SEQ ID NOS: 19473 to 21982, or the SNP is about 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS: 19473 to 21982,

where selective hybridization of the nucleic acid sample to the system indicates the presence of a SNP associated with a trait.

1. The method of any one of the preceding claims, wherein the trait is marbling, tenderness, quality grade, muscle content, fat thickness, feed efficiency, red meat yield, average daily weight gain, disease resistance, disease susceptibility, feed intake, protein content, bone content, maintenance energy requirement, mature size, amino acid profile, fatty acid profile, milk production, a milk quality susceptibility to the buller syndrome, stress susceptibility and  response, temperament, digestive capacity, production of calpain, caplastatin and myostatin, pattern of fat deposition, ribeye area, fertility, ovulation rate, conception rate, fertility, or susceptibility to infection with and shedding of pathogens.

1. The method of any one of the preceding claims, wherein the trait is fat thickness, retail yield, tenderness, marbling or average daily gain.

1. A bovine subject resulting from the method of claim 7.

1. A system for determining nucleotide occurrences of nucleotide polymorphisms (SNPs) in a bovine population comprising:

a hybridizing substrate that includes specific binding pair members corresponding to a series of at least 3 SNPs, wherein

the series of SNPs are associated with a trait from a bovine;

the SNPs occur in more than a single gene; and

at least one SNPs corresponds to position 300 of any one of SEQ ID NOS: 19473 to 21982; or
the SNP is about 500,000 or less nucleotides from position 300 of any one of SEQ ID NOS: 19473 to 21982.

1. An isolated polynucleotide identified according to the method of claim 8.

1. An isolated polynucleotide when used in any one of the methods 1 to 10 comprising:

a)        a fragment of at least 20 contiguous nucleotides of a bovine genome, or

b)         a complement of a);

c)wherein the isolated polynucleotide of a) or b) , comprises a nucleotide occurrence of a single polynucleotide polymorphism (SNP) associated with a trait, wherein the SNP is about 500,000 or less nucleotides from position 300 of any one of the SEQ ID NOS: 19473 to 21982, and wherein the isolated polynucleotide is less than or equal to about 500,000 nucleotides.

1. The method of any one of the claims 1 or 6 to 8, substantially as hereinbefore described.