Nuseed Pty Ltd and Norddeutsche Pflanzenzucht Hans-Georg Lembke KG v Limagrain Europe

Case •

[2025] APO 25

•

8 August 2025

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Nuseed Pty Ltd and Norddeutsche Pflanzenzucht Hans-Georg Lembke KG v Limagrain Europe [2025] APO 25

Patent Application:             2016307234

Title:Brassica plant with pod shattering tolerance

Patent Applicant:                Limagrain Europe

Opponent:Nuseed Pty Ltd and Norddeutsche Pflanzenzucht Hans-Georg Lembke KG

Delegate:Felix White

Decision Date:  8 August 2025

Hearing Date:  8 May 2025, by Videoconference

Catchwords:  PATENTS – opposition to grant under s59 – canola plants characterised by the presence or absence of a number of single nucleotide polymorphisms, and methods of using those single nucleotide polymorphisms for marker assisted selection – novelty ground successful in part – prior use –sale of plant seeds an enabling disclosure of the plant – inventive step ground successful in part - in view of common general knowledge – application of Cripps Question to conventional plant breeding – support and sufficiency grounds successful – breadth of claims – technical contribution – plausibility and undue experimentation – utility ground unsuccessful –opportunity to amend – costs awarded

Representation:                   Solicitor for the applicant: Katrina Crooks

Patent attorney for the applicant: Spruson & Ferguson

Counsel for the opponent: Craig Smith SC

Patent attorney for the opponent: Phillips Ormonde Fitzpatrick

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application:             2016307234

Title:Brassica plant with pod shattering tolerance

Patent Applicant:                Limagrain Europe

Date of Decision:                8 August 2025

DECISION

The Opposition is successful.  Claims 1, 6-8, 11 and 18-20 lack novelty in view of the prior use of Ogura restorer line CR51.  Claims 1-11 and 18-20 lack inventive step in view of the common general knowledge.  All claims lack support and sufficiency due to the breadth of their language.  Limagrain Europe has a period of two months to propose amendments to overcome these issues.  Costs according to Schedule 8 are awarded against Limagrain Europe.

REASONS FOR DECISION

Background

  1. Australian Patent Application 2016307234 (“The Application”) in the name of Limagrain Europe (“The Applicant”) has been opposed under section 59 of the Patents Act 1990 (“The Act”).  The Application is the Australian national phase entry of PCT/EP2016/068612 and claims a priority date of 11 August 2015.

  2. Publication of acceptance of the Application occurred on 18 August 2022, and a notice of opposition was filed in the name of Nuseed Pty Ltd and Norddeutsche Pflanzenzucht Hans-Georg Lembke KG (“The Opponents”) on 18 November 2022.

  3. Amendments were made during the evidentiary period under section 104, which had the effect of adding a number of dependent claims but did not otherwise affect the scope of the Application.  The amended claims, as allowed on 11 September 2024, form the basis of this decision.

  4. Grounds originally cited in the Statement of Grounds and Particulars included the gamut of available grounds for opposition.  An amended statement of grounds and particulars was entered on 18 November 2024. 

  5. Of note but not great import, the period for filing evidence in support was extended several times pursuant to Regulation 5.9, in order for the Opponents to access and analyse seeds that had been deposited under the Budapest Treaty.  This resulted in the Opponents’ evidence in support being spread out in a succession of declarations and the evidentiary period ultimately not concluding until July 2024.  The case was then set for hearing which was held by videoconference on 8 May 2025.

  6. Grounds pressed by the Opponents in the hearing were lack of support, sufficiency and utility, lack of novelty and lack of inventive step.  At the hearing I made further enquires to the parties about the clarity of the claims.  The parties sought additional time to respond to my queries and hence an exchange of supplementary submissions was received, which concluded on 25 June 2025.

  7. Evidence on file consists of:

    ·    Two declarations by Dr Jean-Pierre Despeghel made on 30 October 2023 (Despeghel1) and 16 July 2024 (Despeghel2), accompanied by supporting exhibits JPD1-19

    ·    Two declarations by Dr Amine Abbadi made on 16 October 2023 (Abbadi1) and 29 October 2023 (Abbadi2) accompanied by exhibits AA-1-2

    ·    Three declarations by Prof Jacqueline Batley made on 18 December 2023 (Batley1), 12 February 2024 (Batley2) and 16 July 2024 (Batley3) accompanied by exhibits JB1-5

    ·    A declaration by Dr Mark Wickham made on 12 February 2024 accompanied by exhibits MEW1-4

    ·    A declaration of Dr Rale Gjuric made on 11 May 2024 (Gjuric) accompanied by exhibits RG1-19

    ·     A declaration of Mr Jean Baptiste Laffaire made on 13 May 2024 (Laffaire) accompanied by exhibits JBL1-2

  8. The Applicant sought to bring further declarations from Gjuric and Laffaire into evidence under the provisions of Regulation 5.23 with a letter of 12 September 2024.  A preliminary opinion from the Commissioner’s delegate (issued 4 October 2024) was that these provisions should not be invoked.  If I were to take this evidence into account I would, by the requirements of Reg. 5.23, need to provide the Opponents with a further opportunity to file evidence and submissions in response.  However, I am in agreement with the earlier delegate - the information in these declarations would not affect my decision and therefore there is no reason to introduce them into the proceedings.[1]

    [1] Although I refer to Mr Laffaire’s second declaration in footnote 28, ultimately nothing turns on this.

Applicable Law and Onus

  1. The present application is governed by the Act as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 as the application was filed after 15 April 2013.  Thus, the standard of proof that applies in the present case is the balance of probabilities.  I must accept the Application if I am satisfied, on the balance of probabilities, that the Application complies with the Act.  If I am not so satisfied, then I can refuse the application, but not before giving the Applicant a reasonable opportunity to amend (subsection 60(3B)).

  2. The onus of proof lies with the Opponents.  Nevertheless, I am able to take any ground of invalidity into account as per subsection 60(3).

Field of the invention

  1. The Application relates to the field of breeding oilseed rape (Brassica napus), which is more commonly known in Australia as canola.  I will use these terms interchangeably in this decision.

  2. B. napus is relatively young in breeding terms[2], and is an allopolyploid interspecific hybrid of Brassica rapa (10 pairs of chromosomes) with Brassica oleracea.[3]  I note that each of these parental species encompass a wide range of commercial cultivars, whereas canola is predominantly used for oil production as well as animal feed.  Known problems with rapeseed oil include the presence of erucic acid in oil and glucosinolates in the seed, both of which can be harmful at high levels.[4]  Development and maintenance of plants with low levels of these components has been a focus for plant breeders.

    [2] p. 20 line 12 of the description, see also e.g. Exhibit JPD-5

    [3] Despeghel1 at 21 – I have referred to source material in Dr Despeghel’s evidence but I note that this is broadly consistent with the evidence of Dr Gjuric and indeed the disclosure of the specification.

    [4] Despeghel1 at 22

  3. Another relevant fact about the field of oilseed breeding is that these plants tend to exhibit strong heterosis, or hybrid vigour, with hybrid lines demonstrating increased yield.[5]  In order to create uniform populations of seed, plant breeders typically employ pollination control strategies that require male sterile lines, which enable different lines to be crossed without self-pollination.[6]

    [5] Despeghel1 at 25

    [6] Despeghel1 at 27

  4. However, because oilseeds need to set seed in order to produce a harvestable crop, the male sterility needs to be reversed in the progeny plant.  This can be achieved by so-called “restorer” genes.  A commonly used sterility system in Brassicaceae is the Ogura cytoplasmic male sterility system that is derived from the radish Raphanus sativus.  Prior to the present priority date, this system had been successfully introgressed into canola lines, as had the cognate restorer gene (Rf) also from R. sativus.

  5. An unexpected benefit of the introgression of the Rf genetic material was a reduction in the phenotype of “pod shatter” in the oilseed.  Pod shatter refers to the natural ability of seed pods to dehisce or “shatter” in order to release and scatter the seed.  While this trait is valuable to a wild plant it is preferably reduced in commercial varieties where the seed is intended to be harvested.[7]

    [7] Despeghel1 at 36

  6. On the other hand, the same introgression was also associated with undesirable characteristics including higher glucosinolate levels and decreased yields.[8]

    [8] Description at p. 3 lines 16-19, Despeghel1 at 34-35

  7. Furthermore, and due at least in part to the complex allopolyploid nature of the canola genome, the genetic basis for the phenotypes associated with the Raphanus introgression were not well understood.[9]

    [9] Gjuric at 37

  8. Against this background, the present application provides a canola plant with a shortened introgression which retains the fertility restorer and pod shatter resistance phenotype, while reducing the associated undesirable characteristics.  It also provides a set of single nucleotide polymorphism genetic markers that can be used to test for the presence or absence of the relevant parts of the Raphanus introgression.

The specification

  1. Before construing the specification and claims it is worth restating the principles under which this exercise is performed – construction is a legal task and is a job for the delegate to perform, but it is one that should be done from the perspective of the hypothetical skilled worker in the field – it should be done from the perspective of one seeking to understand and make the invention work, and above all it should be done with a generous measure of common sense.[10]

    [10] cf Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214 at 139

  2. The specification of the Application includes 33 pages of description, 14 pages of figures and ends with 27 claims.  It is also accompanied by a deposit, made under the provision of the Budapest Treaty, of seeds of the B. Napus line R42141F at the National Collections of Industrial, Food and Marine Bacteria in Aberdeen, Scotland.

  3. The description includes a background section which sets out the background of B. napus breeding along the lines mentioned above.  This is followed by statements setting out embodiments of the present invention at p. 4.  In particular, “one embodiment is to obtain a Brassica[11] plant comprising a shortened Raphanus fragment including the pod shattering tolerance alleles”.[12]  Lower down that page it states “The invention also relates to methods for identifying the presence of said pod shattering tolerance allele in Brassica plants and in particular, suitable markers associated (or not associated) to said new pod shattering tolerance.”

    [11] I have italicised all species names as per convention even though I note that the specification tends not to do this

    [12] p. 4 lines 15-17 of the description

  4. From this it would appear that the invention is primarily concerned with shortening the Raphanus introgression while retaining pod shattering tolerance, and while elimination of undesirable characteristics associated with the Raphanus fragment would no doubt be desirable, this does not appear to be essential.

  5. The specification then goes on to describe a Brassica plant which is characterised by a Raphanus fragment in its genome which confers the pod shattering tolerance phenotype POSH+ and which lacks one of the markers defined in SEQ ID Nos 4-18.[13]  It then goes on to describe that the markers defined in SEQ ID Nos 19-21 are preferably present, as is SEQ ID No 22 which is found in the Raphanus FRUITFULL allele which is involved in pod shattering tolerance.[14]

    [13] p. 5 first paragraph of the description

    [14] cf p.2 second paragraph of the description

  6. The specification defines pod shattering tolerance at p. 8 lines 9-10 as a pod with a tension value of at least 2.3 N; a plant with pods with tension values less than 2.3 N are defined as not pod shattering tolerant.  Somewhat ambiguously, the same section defines POSH+ as referring to the presence of the Raphanus POSH region in the genome.  However, I think the skilled reader would understand that POSH+ refers to a phenotype – even in places where the description refers to a “POSH+ allele” such as p. 10 line 5, I consider that the skilled reader would understand that as the allele asserted to confer the POSH+ phenotype.  The apparent difference being the presence or absence of superscript.

  7. The specification defines the markers of SEQ ID Nos 4-22 in Tables 1 and 2, in terms of the presence of an identified nucleotide at a particular position.  SEQ ID No 4-21 are defined as a string of 100 nucleotides, followed by the identified marker nucleotide, followed by a string of another 100 nucleotides.  I understand this way of defining a SNP to be not uncommon, as it is a way of defining a unique nucleotide in its genomic context without the need to refer to genomic coordinates e.g. when a publicly accepted reference genome is not available.  I further understand that the flanking strings should be present in both the Raphanus and Brassica ancestry but differ at the underlined nucleotide.  I note that these sequences are not completely precise and some contain ambiguity codes, which I understand to refer to other polymorphic sites in the canola genome.  The central nucleotide is defined as the Raphanus SNP, which I understand to be an indication that the region of the genome was derived from Raphanus and hence is part of the introgression.  A different nucleotide in the central position I understand to indicate that the region was derived from Brassica and hence is not part of the introgression – while the Brassica SNP is not stated in Tables 1 and 2, Table 3 gives reference primers which show the Brassica SNP at their 3’ end.  SEQ ID No 22 follows a different format – it is only 107 nucleotides long and the SNP is defined at position 25.[15]

    [15] cf Table 1

  8. Back at pages 5-6, and also later at pages 11-13, the specification further sets out methods of identifying POSH+ plants by detecting the presence or absence of respective SNPs, and methods of crossing and backcrossing said plants.  The specification provides means for detecting the respective SNPs, which are “typically nucleic acid probes or primers”[16] and sets out a number of example primers at p. 6 lines 4-5 and Table 3.  Page 16 lines 14-28 explains that the exemplified primers are particularly suitable for the KASP™ genotyping system which uses two differently labelled forward primers, one specific for each allelic form of a SNP, and a common reverse primer.  The presence of each allele can be identified from the fluorescent signal from the PCR reaction mixture.

    [16] p. 6 line 3 of the description

  9. The description concludes with a series of examples.  Example 1 describes the inventors’ efforts to characterise the genetic markers associated with traits on the Raphanus introgression.  According to this example, in 2011 the inventors crossed plants with the full introgression with plants having shorter or no introgression, carried out genotyping on the F2 generation with telomeric and centromeric markers, and repeated this through to 2015 using selfed seed.

  10. Example 2 describes the process used to identify markers specific for the Raphanus introgression.  This involved next-generation sequencing of 143 canola lines, identification of over 200,000 simple or hemi-SNPs, of which 169 were said to fully distinguish male (restorer lines comprising the introgression) from female (lacking the introgression) parents.  Later, 550 new markers were said to be developed for the Raphanus introgression.  The inventors deduced from this that the introgression had replaced one arm of chromosome C09 with Raphanus genetic material.  It would seem that SEQ ID Nos 4-22 are a subset of these.

  11. Example 3 describes the results of genotypic and phenotypic testing of lines produced in the 2013 and 2014 harvests.  These results show a correlation between higher pod shatter tolerance and SNPs from the Raphanus introgression.  In particular, it can be inferred from Tables 4 and 5 that SEQ ID Nos 19-21 are necessary for high pod shatter tolerance whereas SEQ ID Nos 4-18 are not sufficient for high pod shatter tolerance.  I.e. the loss of SEQ ID NO 19-21 causes a reduction in pod shatter tolerance.

  12. A second “Example 3” explains that the pod shatter phenotype is partially dominant, with hybrid lines heterozygous for the Raphanus SNP having less pod shatter tolerance than lines homozygous for the long introgression.  Nevertheless all of the long introgression hybrids in Figure 5 have pod stability at least 2.3 N which is the cutoff defined in the description.

  13. Example 4 further identified the Raphanus FRUITFULL allele as being associated with the POSH phenotype, and provided a set of further primers to identify the presence of this allele.

  14. Example 5 further describes how the F4 progeny of the plants of Example 1 were systematically genotyped and phenotyped in the same way as for Example 3.  This resulted in the identification of one plant with a shortened introgression where the pod shatter coding region was still present.  The F5 progeny of this plant was designated R42141F and was said to be pod shattering tolerant and had a good pod size. 

  15. I note that this is the line (R42141F) from which seed was deposited under the Budapest treaty.

  16. Figure 6 sets forth that the line designated R51542141-F[17] is at least homozygous for SEQ ID Nos 19-22 (the “POSH region”) as well as the Raphanus FRUITFULL allele, while lacking Raphanus DNA in the region corresponding to SEQ ID Nos 9 and 12-18.  This line has similar pod shatter tolerance to the full length introgression but similar pod size to the shorter introgression. 

    [17] I understand this to be the same line as R42141F, cf p. 30 line 20 of the description

  17. Example 6 details another example of genotyping F2 plants generated in 2012 and identifying plants having only SEQ ID Nos 19-21 from the Raphanus introgression but lacking the Rf0 fertility restorer locus.  These were then used to create crosses which are fertile, with shortened Raphanus fragment and have pod shatter tolerance.  One example of this genotype appears to be the line “04013_22” in Figure 7, although pod shatter tolerance was not measured and this line was not deposited.

  18. Example 7 and Figure 3 shows the relationship between the size of the Raphanus introgression and pod size.  In particular, the line R4513-CA with the full length introgression has high pod shatter tolerance but poor pod size, the heterozygous hybrid line Arsenal has good pod size but poor pod shatter tolerance, line RD153-101 with a shortened introgression but no POSH locus has good pod size but very poor pod shatter tolerance, and the deposited line R51542141-F has good pod size and good pod shatter tolerance. 

  19. This is consistent with the inventors’ hypothesis that the POSH region marked by SEQ ID Nos 19-21 is associated with pod shatter tolerance while the remaining regions of the introgression are responsible for undesirable characteristics, in particular poor pod size. 

  20. Example 8 and Figure 4 show the results of segregation in a double hybrid population, which is consistent with the above hypothesis.

  21. It is worth noting at this point that although the numbering of SEQ ID Nos 4-21 as well as the presentation of these markers in the figures and tables of the present application imply that the markers occur in order along the Raphanus introgression, there is no apparent evidence that this is actually so.  Although the inventors seemed to have performed a next generation sequencing assembly during the work described in Example 2, the genomic coordinates of the markers have not been disclosed.

The claims

  1. The specification ends with 27 claims, of which only claims 1 and 17 are independent, in that they do not refer to or cross-reference any other claims.

  2. The claims (which are annexed in full at the end of this decision) can broadly be grouped into the following categories:

    ·     Claims 1-11 are directed to POSH+ Brassica plants and plant parts characterised by the presence and absence of specified Raphanus SNPs in their genome.  In particular, claim 1 specifies that at least one of SEQ ID Nos 19-21 (markers of the POSH locus) must be present and at least one of SEQ ID Nos 4-18 (markers of the rest of the Raphanus introgression) are absent.  I take this to mean that the claimed plants have at least part of the Raphanus POSH locus while lacking at least part of the remainder of the introgression.  The metric used to determine this is the presence or absence of specific defined SNPs.

    ·     Claims 12-16 are directed to methods of identifying POSH+ Brassica plants by detecting the presence and absence of the specified Raphanus SNPs.  I understand these claims to refer to testing for the presence and absence of the respective SNPs in any Brassica plant with the intention of differentiating POSH+ from POSH- plants.

    ·     Claim 17 is directed to a method of using one or more primers set out in SEQ ID NO: 52-54 and SEQ ID NO:64-117 for detecting one or more of the Raphanus SNPs of SEQ ID 4-22.  I note that this is somewhat broader in scope than claim 12 in that it only requires detection of one of the Raphanus SNPs and furthermore includes detection of the FRUITFULL marker SEQ ID No 22 which is not included in claim 12.

    ·     Claims 18-20 are directed to conventional uses of the plants of claims 1-11 for oil, food, or breeding purposes.

    ·     Claims 21-24 relate to marker-assisted selection of hybrids using a plant of claims 1-11 as a parent.

    ·     Claims 25-27 relate to marker-assisted selection of hybrid plants according to claim 1-11, starting with parental plants comprising a Raphanus introgression.

  3. To the extent that any of the dependent claims add features which make a material difference to the base claims I will address them under the relevant statutory basis.  Although nothing ultimately turns on it, I note that only claim 24 specifically references the deposited line R51542141-F (NCIMB 42444).

The expert evidence

  1. Dr Despeghel has worked in the field of oilseed rape for over 40 years, first at Monsanto and more recently as an independent consultant.  His experience includes being the Worldwide Oilseed Rape Breeding Manager at Monsanto for a time, and he states he was recognised as an oilseed rape expert.[18]  In his first declaration, Dr Despeghel provides his opinion on what was known in the art in the period up to the filing of the opposed application, and subsequently provided his opinion upon reading the application.  His second declaration is confined to comments on the Declarations of Mr Laffaire and Dr Gjuric.

    [18] Despeghel1 at 3-5

  2. If anything, Dr Despeghel’s level of expertise is such as to make him more knowledgeable than the nominal skilled worker in the art.  However I can take his evidence into account when inferring what that nominal skilled worker would have known.  Notably, Dr Despeghel considers that the quadrennial International Rapeseed Congress was the major conference in the field of oilseed rape breeding, was widely attended and was his way of keeping abreast of activity in the field.  He considers that data and information presented at the Congress to be a good indication of the state of knowledge in the field.[19]

    [19] Despeghel1 at 15-16

  3. Dr Abaddi is a head of research and breeding innovation at NPZ Innovations (apparently part of the same group of companies as the second named Opponent).  Dr Abaddi’s evidence relates to SNP genotyping assays for the markers in Tables 1-2 of the Application, using the KASP genotyping system, on a number of Dekalb canola hybrid that were said to have been available before August 2015.  His first declaration related to the hybrids DK Exception, DK Exstorm, DK Explicit and DK Exocet.  His second declaration related to the hybrid DK Excellium and the restorer line CR51 used to generate this hybrid.

  4. Prof Batley is a Professor of Biological Sciences at the University of Western Australia.  Her technical background relates to crop genetics with particular focus on disease resistance and crop improvement in Brassica species, and she has been directly involved with identifying genes related to inter alia shatter tolerance.[20]  Her first declaration relates to carrying out similar KASP assays as performed by Dr Abaddi, but on the R42141F line deposited by the Applicant under the Budapest treaty.  Her second declaration relates to commentary on Dr Despeghel’s declaration (notably she also stated she had attended the 2011 International Rapeseed Congress and recalled particular presentations made there).  Her third declaration responds to Dr Gjurics’s comments regarding her KASP assays.

    [20] Batley1 at 3-6

  5. Similarly to Dr Despeghel, Prof Batley’s level of knowledge in the field is very high but I can take her evidence into account when inferring what the nominal skilled worker would have known or done.

  6. Dr Wickham’s declaration related to the prosecution history of corresponding patent applications in different jurisdictions.  This evidence was not relied on in the Opponents’ case.

  7. Dr Gjuric has over 35 years of experience in the field of plant breeding.  Most notably he was responsible for the canola breeding program for the Canadian subsidiary of DSV from 1996-2009.[21]  Since 2009 he has worked as an independent consultant in the same field, working on business and technical aspects relating to canola.[22]  He has also been involved in breeding canola varieties, particularly relating to herbicide tolerance.[23]  Dr Gjuric’s declaration follows the same structure as Dr Despeghel’s, after which he comments on the Despeghel, Batley and Abaddi declarations.

    [21] Gjuric at 4

    [22] Gjuric at 5-7

    [23] Gjuric at 10

  8. Much like Dr Despeghel and Prof Batley, Dr Gjuric indicated that he attended major conferences as a way of keeping up to date with developments in the field.[24]  I can take his evidence into account when inferring what the nominal skilled worker would know or do.

    [24] Gjuric at 22

  9. Mr Laffaire is the Rapeseed Markers Development Project Leader at the Applicant.  His expertise relates to molecular biology including QTL mapping and has extensive experience in the KASP assay.  His declaration relates to a genotyping exercise on commercial seeds of DK Exocet and he provides comments relating to Dr Abaddi’s analysis of DK Exocet.

Weighing of evidence

  1. It is the role of the Commissioner’s delegate to weigh evidence which also involves reconciling conflicting evidence when necessary.  In the present case I noted a number of apparent inconsistencies and contradictions in the efforts of Dr Abaddi, Prof Batley and Mr Laffaire to repeat the genotyping experiments disclosed in the application, on either the deposited line or commercially available lines, although the parties’ submissions in the hearing had not touched on that issue.

  2. In my letter of 12 May 2025, I raised the following points, and sought submissions from the parties on the reliability of the KASP assay for determining the SNPs in whose terms the claimed invention is defined:

oDr Abaddi, Prof Batley and Mr Laffaire all carried out KASP assays using the 18 primer sequences set out in the opposed application.

oDr Abaddi amplified a different set of markers in Exocet (16/18) than in Exception, Exstorm and Explicit (14/18)[25] and did not appear to attempt to amplify SEQ ID 7.

oProf Batley was not able to amplify SEQ ID 4, 7, 15 and 17 in the deposited seed.[26]

oMr Laffaire did not attempt to amplify SEQ ID 7 and was not able to amplify SEQ ID 15 when retesting Exocet.[27]

oThe results of Dr Abaddi’s and Mr Laffaire’s testing of Exocet lines are significantly different, and I note that in Mr Laffaire’s second declaration he characterises Dr Abaddi’s results as “implausible”.[28]

oProf Batley further returned divergent results in 5 of the remaining 14 sites when retesting the deposited strain i.e. only half (9/18) of the alleles reported for R5154241-F in Fig 6 of the Opposed application were reproduced by Prof Batley’s test.[29]

oDr Gjuric criticised Prof Batley’s experimental design[30] suggesting that she had not used all appropriate homozygous, heterozygous and wild type controls.  Prof Batley responded that she did not have said controls available, as they had not been deposited.[31] 

[25] Abaddi1 at 7 and 11

[26] Batley1 at 20 and JB-3

[27] Exhibit JBL-2

[28] Laffaire2 at 8 – although Laffaire2 was outside the regulated evidentiary period ultimately nothing turned on this so there was no need to invoke the Reg 5.23 provisions.

[29] Batley1 at 19

[30] Gjuric at 184-186

[31] Batley3 at 8

  1. My main concern in raising this issue was the possibility that the SNPs claimed could not be detected reliably, and if that were the case the possibility that there would be no workable standard for determining whether or not any plant fell within the scope of the claim, which could have led to a fatal lack of clarity.[32]

    [32] See Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd [1980] HCA 9 at [46]

  2. I have reviewed the Opponents’ submissions on this point (dated 4 and 25 June 2025) but I did not find them particularly helpful - they pointed to the same contradictions I identified above but did not go so far as to make the case that the KASP assay was not reliable. 

  3. On the other hand I found the Applicant’s reference to Federal Court Rule 34.50 in their submissions of 18 June 2025 to be quite helpful.  I understand this to mean that in an infringement proceeding, both parties must have access to the conduct of any experiment used in evidence, which forms an adequate basis for challenging the evidence, whereas no such provision is available before the Commissioner.

  4. On balance of the evidence and submissions, I am not satisfied that detecting SNPs with the KASP assay is so inherently unreliable as to constitute a lack of workable standard.  The claims are therefore not unclear on this basis.  I am further comforted by the fact that if a plant was alleged to infringe the present claims, any inconsistencies in experimental results would be likely to be resolved in the evidentiary process as per the Federal Court Rules.

  5. Needless to say this does not resolve the contradictions in the experimental evidence but I will weigh the evidence to the best of my ability using the information available to me, as required to decide on the grounds of invalidity which have been pressed.

Novelty

  1. The only novelty ground pressed by the Opponents is lack of novelty in view of prior use.  The Opponents did not point to any principles of particular relevance for assessing this flavour of novelty, beyond the well-worn ones of reverse infringement and clear and unmistakable direction:

    “If the prior inventor’s publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee’s claim if carried out after the grant of the patentee’s patent, the patentee’s claim will have been shown to lack the necessary novelty, that is to say, it will have been anticipated.”[33]

    [33] General Tire & Rubber Co. v Firestone Tyre & Rubber Co Ltd (1972) RPC 457 at p 485

  1. The Applicant’s submissions did provide some assistance with respect to prior use by referring to the Full Federal Court’s decision in Damorgold.[34]  This included the following principles:

    [34] Damorgold Pty Ltd v JAI Products Pty Ltd [2015] FCAFC 31

    “The onus lies on the party seeking to establish an enabling disclosure”

“… in order to establish lack of novelty through doing a single act, it is necessary to establish that the prior art information was made publicly available through the doing of that act”

“The act must have made the claimed invention publicly available. This means that it is accessible to at least one member of the public in circumstances where that person would be free in law and equity to make use of it as that person saw fit”

And finally

“The issue is whether what the skilled addressee observes on inspection is sufficient to enable him or her to comprehend the complete invention”

  1. I have added emphasis to this last point because in my understanding the working of inventions in the field of engineering, as in Damorgold, differs somewhat from in the field of plant breeding which is the case here.  To carry out a mechanical invention, it is of course necessary to observe all the component parts in a manner that enables the observer to reproduce it (and hence to satisfy the reverse infringement test). 

  2. In the context of plant breeding, however, my understanding is that to make a plant all that the skilled worker needs to do is grow it from seed, assuming that the seed has the genetic information required to produce an infringing plant.

  3. So in the present case I think it is sufficient to ask whether seeds having the claimed SNPs were available, free in law and equity, to a member of the public before the priority date.

  4. I note the Applicant’s argument at [60] of their written submission that there could have been no public disclosure of the genotype because the claimed SNPs had not been characterised yet.  This approach strikes me as approaching parameteritis – as elegantly stated by Beach J in Otsuka:[35]

    “Novelty of invention is not provided merely because information given as part of the definition of the invention in a claim is new information”

    [35] Otsuka Pharmaceutical Co. Ltd v Generic Health Pty Ltd (no 4) (2015) FCA 634, at 320

  1. That is, a plant bearing the claimed SNPs would have infringed the claim before the priority date, whether its genotype was known at the time or not.

  2. I nevertheless consider that there is a high burden on the Opponents to establish that the same seeds in question, by necessity tested well after the priority date, had been available free in law and equity many years before.

  3. Dr Abaddi’s first declaration does not, in my view, discharge this onus for the following reasons.  At paragraph 3, he indicates that he was asked in March 2023 to provide genotype data on hybrids “available before August 2015”.  In the next paragraph he states the seeds had been obtained (from an unspecified source) on 17th April 2018 (after the priority date).  Confusing matters somewhat, Table 2 indicates the source of some of the varieties (Monsanto) but indicates different dates (2014 and 2011) but without further context.  Table 3, relating to DK Exocet, has neither of these fields.

  4. I note that Dr Despeghel appears to corroborate that these Dekalb hybrids were available prior to 2015,[36] but I do not have any evidence that these hybrids were genetically stable over time.  Mr Laffaire refers at paragraph 8 of his declaration to “mispollination” being quite common in the production of commercial seed lots in order to explain inconsistencies in the SNP analysis of the Exocet variety.  I infer from this that different lots of the same seed may have different genetics.  Abaddi1 therefore does not satisfy me on the balance of probabilities that the seeds tested were ones which were freely available before the priority date.

    [36] see paragraphs 43 and 51 referencing exhibits JPD-8 and JPD-13

  5. Abaddi2 goes some way further in this regard by providing a paper trail for the DK Excellium and CR51 seeds (Annexes AA-1 and AA2 respectively).  I note that AA-1 indicates that the samples were for experimental purposes and were free of charge.  Typically, when samples are provided in this fashion they are limited to experimental purposes only.  Therefore this does not satisfy me on the balance of probabilities that the Excellium seeds tested were sold free in law and equity.

  6. Annex AA-2, on the other hand, is a purchase order dated 1 November 2012 showing the purchase of 396 kilograms of CR51 at 15 Euro per kilogram.  This I take to mean that the seeds were freely available to purchase.  I can therefore consider the CR51 seeds tested in Table 2 of Abaddi2 to be part of the prior art base for novelty.

  7. These seeds are homozygous for Brassica at SEQ ID NO. 9 and are homozygous for Raphanus at all other loci tested.  As these seeds, when grown, would have inevitably made a plant with the properties of claim 1 this takes away the novelty of claim 1 (but not 2-5) according to the reverse infringement text.  I consider it more likely than not that these seeds also had the FRUITFULL locus based on its presence in the Raphanus introgression, taking away the novelty of claims 6-7.  As per claim 8 the CR51 line is a restorer line and has the Rf0 locus, but not necessarily the Ogura cytoplasm of claim 9.  Other appended claims which I consider anticipated by the prior use of CR51 are claims 11 (seeds), and 18-20 (agricultural uses).

  8. There is no suggestion that any of the marker-assisted selection method claims lack novelty.

Inventive step

  1. The Opponents’ written submissions on inventive step were not particularly structured and did not particularly differentiate between the claims to plants per se or the claims to methods of marker assisted selection. 

  2. The Opponents advanced four bases for lack of inventive step – in view of common general knowledge alone, as well as in view of common general knowledge supplemented by the disclosure of three different “plus one” prior art documents as per s7(3)(a)[37].  The Opponents’ core submission is that each of the claims involve nothing more than the use of a standard marker-assisted selection approach to a known breeding problem.  I will first consider inventive step in view of common general knowledge (subsection 7(2)) and then consider if the “plus one” documents materially supplement this.

    [37] Exhibits JPD-6, JB-4 and JPD-15

  3. The most commonly used test for inventive step is the so-called “Cripps question” – which is whether the skilled worker would have been directly led to try the claimed invention with a reasonable expectation of success in solving the problem.[38]

    [38] Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411 at 53

  4. I note at this point that, analogous to the difference I discussed with respect to Damorgold and prior use information, the principles of plant breeding are such that it is just not possible to “try” a particular plant genotype.  Rather, when carrying out conventional plant breeding, one must simply repeatedly cross parent plants with a hope of introgressing traits from one into the other.  There was no evidence presented relating to the state of the art in terms of genetic engineering, but my understanding of the state of the art is that while insertion of foreign genetic material was possible (through biolistics or Agrobacterium) this could not be done in a site specific way.  At the priority date CRISPR was not widely available and in any event precision editing required chromosome mapping which, as the evidence here attests, had not been carried out or at least was not part of the common general knowledge.  I might summarise my understanding as being that while engineering for insertion of genetic material was possible, removal or replacement of genetic material required standard plant breeding techniques, which notably do not require precise knowledge of genomic structure (although marker assisted selection certainly increases the efficiency of the breeding process).

  5. Conveniently in this case, all the experts agreed that the quadrennial International Rapeseed Congresses were attended by everyone with a substantial interest in the field and were the primary means of information transfer in the field.  I can infer from this that information presented during these conferences can be considered, if not common general knowledge per se, at least indicative of what was common knowledge to all in the relevant field.  Prof Batley even stated that she could remember specific posters from more than a decade ago.

  1. As outlined earlier, it appears to be common ground that the Raphanus introgression, originally introduced into canola as a male fertility restorer, was known before the priority date to additionally confer beneficial (pod shatter tolerance) as well as detrimental characteristics.  Furthermore, the experts agreed that there was a desire before the priority date to reduce the size of the Raphanus introgression.[39]  This is corroborated by Annex JPD-5, a poster presented at the 2011 Congress (of which Dr Despeghel is an author).  Entitled “Breeding for pod shattering resistance in WOSR hybrids”, this is one of the posters which Prof Batley said she remembered.

    [39] Despeghel1 at 34, Gjuric at 36

  2. Notably this poster discloses

    Resistance sources to shattering in WOSR

Although there is quite large diversity for susceptibility to pod dehiscence within the WOSR germplasm; the strongest source of resistance to pod shattering is to be found in Ogura-INRA hybrids. The introgressed DNA region from Raphanus sativus, which carries the restoration gene, brings to the hybrids, through the restorer, some unwanted characteristics such as higher glucosinolate content and small pods, but also at the same time an unmatched level of pod shattering resistance. We have been able to improve the quality and the pod size of our restorers without losing the shattering resistance by systematically selecting for this character in our restorer nurseries.

  1. As I mentioned I am satisfied that this document is representative of common general knowledge in the art; even assuming this is not the case it would certainly be part of the prior art base as a “plus one” document.  This passage shows that it was known in the art that the undesirable traits on the Raphanus introgression could be separated from the desirable shattering resistance.  Furthermore the passage indicates that this was possible, from which I infer that the “person skilled in the art” would have had an expectation of success in carrying it out.

  2. Turning first to the inventive step of the plant claims, I consider there was clear motivation in the art to remove undesirable traits from the Raphanus introgression while maintaining pod shatter tolerance, and to select for same in restorer lines, with a reasonable expectation of success.  It follows that in seeking to do so, through conventional techniques, the skilled worker would have inevitably selected plants with shorter and shorter introgressions, even though they may have been unaware of the precise genetic basis for these.  I therefore consider on the balance of probabilities that the plants produced and selected in this way would inevitably lose the markers in the region of the introgression unrelated to pod shattering and therefore be genetically indistinguishable from the plants of claims 1-11, regardless of whether the selection was done on the basis of markers or not.

  3. The Applicant’s rebuttals were primarily focused on the non-obviousness of the molecular markers per se.  While I accept this and find it persuasive for the claims actually limited by the use of those markers, claims 1-11 are directed to plants per se regardless of how they were selected.  Furthermore, the use of these plants in conventional ways as set out in claims 18-20 are also obvious in view of common general knowledge alone.  For these claims it is unnecessary to refer to the disclosure of the “plus one” documents.

  4. On the second front, of the marker-assisted selection claims, the Opponents’ arguments presented during the oral hearing were along the lines that the identification of markers was an obvious and desirable thing to do, and that the uninventive skilled worker would have inevitably stumbled upon the claimed markers and hence been able to utilise them for marker assisted selection.

  5. The Applicant’s very justified criticism of this is that there is no evidence base for this whatsoever.  Because genomic information is required to establish the identity of the SNP markers, the inventive step rationale used for the plant claims cannot apply here.  There is nothing suggesting the identification of these precise SNPs or the design of primers specific for their detection.  Although Prof Batley’s evidence is that before the priority date her own group had carried out next generation sequencing and identified over 16,000 polymorphic markers in B. napus including a number associated with pod shatter[40] there is no suggestion from the Opponents that the specific markers claimed formed part of this data set.

    [40] Batley2 at 9, Annex JB-4

  6. The “plus one” documents do not assist the Opponents in this regard either.  There is no suggestion in the Opponents’ submissions that the precise SNPs had been disclosed in the plus one documents, or any rationale as to how the skilled worker would have been directly led to these sequences based on the plus one documents.  If anything, they only constitute a suggestion to identify markers which falls well short of the requirement in the Cripps Question of a motivation to try any of the claimed markers with a reasonable expectation of success in distinguishing Raphanus from napus DNA.

  7. In conclusion, there is no evidence suggesting that the skilled worker would have been directly led to the particular claimed marker sequences.  The inventive step argument for the marker-assisted selection claims therefore fails.  However I find that claims 1-11 and 18-20 lack inventive step in view of common general knowledge.

Sufficiency and Support

  1. If I could broadly summarise the parties’ approach to support and sufficiency, it would be to say that the Opponents focussed on a literal reading of the claims and sought to draw attention to various combinations and permutations of features which they assert do not correspond to the technical contribution, or cannot be made without undue experimentation, respectively.

  2. The respective tests for support[41] and sufficiency[42] all start with determining the scope of the claims. 

    [41] Originally set out in CSR Building Products Limited v United States Gypsum Company [2015] APO 72 “CSR” and endorsed in subsequent Federal Court decisions

    [42] Originally set out in Evolva SA [2017] APO 57 “Evolva” and endorsed in subsequent Federal Court decisions

  3. For support, the test requires a comparison of the technical contribution, as determined with regard to the specification as a whole, with the scope of the claims.  For sufficiency, the test requires firstly to determine whether it is plausible that the invention could work over the full scope of the claims, and furthermore whether to do so would involve undue experimentation as in a research project.  The meaning of “full scope” was clarified in Jusand[43] to refer to variables that are relevant to the technical contribution.

    [43] Jusand Nominees Pty Ltd v Rattlejack Innovations Pty Ltd [2023] FCAFC 178

  4. In broad terms, the Opponents viewed the claims as directed to plants simply characterised by having (or lacking) any combination of specified Raphanus SNPs, and also that the claims encompass SNPs that are not the same as those underlined in Tables 1 and 2.

  5. On the other hand, the Applicant sought to highlight the inventors’ contribution in identifying markers for the parts of Raphanus introgression which are/are not responsible for the pod shattering tolerance phenotype, and to parlay that into a “principle of general application” which the skilled worker can then apply broadly.

  6. The Opponents identified three areas where they alleged the scope of the claims exceeded the enabled subject matter:  the species of Brassica, the identity of the Raphanus SNPs and the combination of Raphanus SNPs.

Range of Brassica species

  1. The specification defines “Brassica” quite broadly as including “a plant of Brassica species, including B. napus, B juncea and B. rapa; preferably B. napus”.  The Opponents submitted[44] that the technical contribution in the application was limited to B. napus and the claims were necessarily broader than this.  The Applicant’s response to this was that Brassica species were a principle of general application and no evidence had been presented that plants could not be made across the full scope of the claim.

    [44] D.5 of OS

  2. In seeking to understand whether the Brassica species was in fact a relevant variable in the sense of Jusand and/or whether a principle of general application existed across it, I was led to also consider the nature of the DNA introgressed from Raphanus, which is what provides the pod shatter phenotype to the Brassica plant.

Nature of the Raphanus DNA

  1. The claims specify that the Raphanus genomic fragment confers pod shattering tolerance as well as having at least one of the SNPs in SEQ ID NO 19-21.  From the context of the application as a whole, it is clear that the reference to the Raphanus DNA in claim 1 only makes sense when it refers to the introgression found in Ogura restorer B. napus lines, the kind which Dr Gjuric states was well known to include half a chromosome of Raphanus DNA.[45]  That is, the technical contribution appears to be limited to that genetic background.

    [45] Gjuric at 30-31

  2. There is no evidence that the phenotype of pod shatter resistance would be achieved in Brassica species other than B. napus or with any different introgression.  The phenomenon of pod shatter resistance, and its genetic basis, is clearly a relevant variable (as defined in Jusand) for the present invention.  However it has only been demonstrated in one particularly genetic background.  Although not precisely analogous, this calls to mind the principles set out by Sumption LJ in Warner:[46] 

    “The proposition that a product is efficacious … must be plausible. It is not made plausible by a bare assertion to that effect … there must be something that would cause the skilled person to think that there was a reasonable prospect that the assertion would prove to be true … that reasonable prospect must be based on … a direct effect on a metabolic mechanism”

    [46] Warner-Lambert v Generics [Mylan] [2018] UKSC 56 at 37

  3. As such it is not sufficient to merely assert that the phenotype of pod shatter resistance is generalisable beyond the one example genetic background (Ogura restorer B. napus lines).  Although there is a proposed genetic locus, there is no metabolic mechanism suggested.  For example it is not clear whether the POSH locus from the Raphanus introgression represents a gain of function (from Raphanus DNA) or a loss of function (from napus DNA).  In this case the lack of evidence counts against the Applicant.

  4. I am not therefore convinced by the Applicant’s invocation of a principle of general application in terms of the combination of Brassica species and the nature of the Raphanus DNA.

Nature of the Raphanus SNPs

  1. The wording of the claims refers to Raphanus SNPs “within” the respective oligonucleotide sequences.  Dr Despeghel’s reading of this was that it included potential SNPs apart from the ones underlined in Tables 1-2, and that to identify other Raphanus specific SNPs within those sequences would require a new research project.[47]  Dr Gjuric on the other hand considered that he would have no difficulty in identifying Raphanus SNPs in the sequences based on the primers provided in Table 3.[48]

    [47] Despeghel1 at 107 and 136

    [48] Gjuric at 110

  2. In this regard I note that the primers shown in Table 3 only provides a comparator nucleotide (Napus v Raphanus) for the underlined variant position.  Therefore it seems that the only SNPs that Dr Gjuric would be able to identify were the ones at the underlined positions.

  3. The Applicant’s submissions on this point included that there was no need to find additional SNPs in each sequence as one had already been provided; there was no evidence that any additional SNPs even existed in the oligonucleotide sequences; and that based on the disclosure of the present application, the skilled worker could identify nearby SNPs should they exist and use them equally for marker assisted selection.

  4. I have to say that I find those arguments somewhat contradictory – if the other markers are not needed or do not exist then the technical contribution must be just the disclosed marker. And even though the applicant asserts that the scale of research to validate additional Raphanus specific SNPs in the 3000 positions is much less than a full research project, the lack of surety as to whether such markers even exist is to my mind indicative of a research project.  I consider on balance that the inventors’ technical contribution with respect to marker assisted selection is only the SNPs at the underlined positions, and the evidence suggests that to identify new Raphanus specific SNPs in those sequences would require restarting the entire research project which is undue experimentation.

Combinations of markers

  1. The Opponents also pointed to difficulties in making and using plants with any combination of markers – for example they pointed to a lack of direction to make a plant lacking only Raphanus SNPs of SEQ ID NO 4 and 5.[49]  They also argued that not all plants having combinations of SNPs within the scope of the claim would achieve pod shatter tolerance or be advantageous.[50]  I do not find the latter argument particularly persuasive because the product claims are limited to plants with the POSH+ phenotype and hence plants which lack that phenotype are necessarily excluded.  I also do not think there is any undue experimentation involved in making plants within the scope of the claim by conventional breeding methods (cf my conclusion on inventive step) even if this may be via a tedious process.

    [49] OS at 57

    [50] OS at D.4 and E.4

Technical contribution

  1. The canonical test for support as set out in CSR is to determine the technical contribution of the specification and determine whether this corresponds to the scope of the claims.

  2. In light of my reading of the specification as a whole and the expert evidence, my understanding of what the Applicant has contributed in the present application is a set of SNP markers from the Raphanus introgression into B. napus Ogura restorer lines, some of which are associated with pod shatter tolerance and some which are not, and claimed plants that have some of the former and lack some of the latter.  The Applicant also deposited one hybrid B. napus line that had both satisfactory pod size and shatter resistance (lacking some, but not all, of the claimed nonessential markers).

Conclusion on support and sufficiency

  1. The claims are broader than the technical contribution in three areas:

  • The nature of the Brassica species (all Brassicas as opposed to B. napus)

  • The nature of the Raphanus DNA (any Raphanus DNA as opposed to the Ogura restorer half chromosome)

  • The identity of the Raphanus SNPs (any SNPs within SEQ ID Nos 4-21 as opposed to the underlined nucleotides)

  1. I come to an analogous conclusion in terms of sufficiency – I am not convinced that any of the above three variables are principles of general application.  In particular I am not convinced it is plausible that the prediction for pod shatter phenotype would be relevant for plants other than B. napus with the Ogura restorer Raphanus introgression on chromosome 9.  Further, while it is plausible that other SNPs could exist within SEQ ID Nos 4-21 my conclusion is that identifying the same would be undue experimentation.

Utility

  1. The Opponents’ position on utility was that the invention as claimed does not achieve its promised benefit, which the Opponents identified as being both low glucosinolate levels and good pod size, pointing to the passage on p. 4 of the description that states these are necessities for any commercialized plant.  The Opponents submitted that there was no evidence that as few as one missing Raphanus SNPs would confer these traits.  I note that there is nothing in the specification measuring glucosinolate levels at all.

  2. I note that the Opponents cited the 2018 ESCO v Ronneby Road Full Federal Court decision[51] to support the proposition that the promised benefit or intended utility must be derived from the whole of the specification.  My understanding of the outcome of that case is that, contrary to the first instance that held that all of the benefits listed in the specification needed to be met, the promises in that case were to be read disjunctively.[52]

    [51] Cited supra

    [52] At 292

  3. Nevertheless, from my reading of the specification as a whole, the utility of the claimed SNPs is simply to act as markers for selecting out unnecessary parts of the Raphanus introgression while maintaining pod shattering tolerance.  There is nothing in the evidence that is inconsistent with this.  The Application’s mention of the desire for low glucosinolates and good pod size is not to be taken as a binding statement of utility.  I am not aware of any precedent that commercial applicability is a prerequisite for the utility requirement

  4. The ground of lack of utility has not been made out.

Conclusion

  1. The Opposition succeeds on the following grounds:

    ·     Claims 1, 6-8, 11 and 18-20 lack novelty in view of the prior use of the Ogura restorer line CR51, which I am satisfied was available free of law and equity before the priority date and which was demonstrated to lack the Raphanus SNP of SEQ ID 9.

    ·     Claims 1-11 and 18-20 to plants per se lack inventive step in view of the common general knowledge, in that the skilled worker would have been directly led to reduce the size of the Raphanus introgression through conventional breeding techniques.

    ·     All claims lack support and sufficiency over their full scope, to the extent that they encompass plants other than B. napus with the Raphanus introgression on chromosome 9, derived from the Ogura restorer line, and to the extent that they encompass SNPs other than those underlined in Figures 1 and 2.

  2. As there is a clear prospect that these grounds can be overcome by amendment, I provide the applicant with a period of two months from the date of this decision to propose amendments under s104.

Costs

  1. Costs usually follow the event and there is no reason to deviate from that approach in this case.  I note that the claims were amended under s104 during the opposition but this amendment served only to add additional dependent claims and did not obviate any of the grounds of opposition.  I therefore award costs according to Schedule 8 against Limagrain Europe.

Felix White

Delegate of the Commissioner of Patents

Annex – Claims as amended

1. A Brassica plant comprising a Raphanus genomic fragment within its genome, wherein said fragment confers pod shattering tolerance phenotype POSH+ and said fragment is characterized by:

- the absence of at least one Raphanus SNP within at least one of the following markers: SEQ ID NOs 4-18, and

- the presence of at least one Raphanus SNP within at least one marker SEQ ID NO 19, SEQ ID NO 20 or SEQ ID NO 21.

2. The Brassica plant according to claim 1, wherein said absence of at least one Raphanus SNP is within a marker selected from the groups consisting of: SEQ ID NOs: 4-8 and SEQ ID NOs: 10-18.

3. The Brassica plant according to claim 1, wherein said absence of at least one Raphanus SNP is within at least two of the markers SEQ ID NOs: 4-18.

4. The Brassica plant according to Claim 1, wherein the Raphanus SNPs within said markers SEQ ID NO:9 and SEQ ID NOs: 12-18 are absent.

5. The Brassica plant according to any one of Claims 1 or 4, wherein the Raphanus SNPs within said markers SEQ ID NOs:4-18 are absent.

6. The Brassica plant according to any one of Claims 1-5, wherein the plant further comprises a Raphanus FRUITFULL allele.

7. The Brassica plant according to claim 6, wherein the Raphanus FRUITFULL allele comprises the Raphanus SNP within marker of SEQ ID NO:22.

8. The Brassica plant according to any one of claims 1 to 7, wherein said plant further comprises the male fertility restoration locus Rf0 within the Raphanus fragment.

9. A Brassica plant according to any one of the claims 1 to 8 wherein said Brassica plant comprises a CMS Ogura cytoplasm.

10. A hybrid Brassica plant obtained by crossing a Brassica plant having a Raphanus fragment conferring POSH+ phenotype according to anyone of the claim 1 to 9, with another Brassica plant which does not have said Raphanus fragment conferring POSH+ phenotype, wherein said hybrid plant comprises the Raphanus genomic fragment which confers pod shattering tolerance phenotype POSH+.

11. A seed, a part of a plant, or a progeny of the Brassica plant according to any one of the claims 1 to 10.

12. A method of identifying a POSH+ Brassica plant according to any one of claims 1 to 11, wherein said Brassica plant is identified by detecting the presence of at least one Raphanus SNP within at least one of the following markers SEQ ID NO 19, SEQ ID NO 20 or SEQ ID NO 21 and detecting the absence of at least one Raphanus SNP within at least one of the following markers SEQ ID NOs 4-18.

13. The method according to claim 12, wherein said absence of at least one Raphanus SNP is within a marker selected from the groups consisting of: SEQ ID NOs: 4-8 and SEQ ID NOs: 10-18.

14. The method according to claim 12, wherein said absence of at least one Raphanus SNP is within at least two of the markers SEQ ID NOs: 4-18.

15. The method of any one of claims 12 to 14, wherein the POSH+ locus is further identified by using a Raphanus FRUITFULL allele, and more specifically the Raphanus marker SEQ ID NO 22.

16. Method according to any one of claims 12 to 15, wherein the Rf0 locus is further identified.

17. A method of using one or more means for detecting one or more Raphanus SNP within one or more of the following markers: SEQID NOs 4-22, said means consisting of one or more primers including any one of SEQ ID NO: 52-54 and SEQ ID NO:64-117.

18. Use of the Brassica plant or their seeds, according to any one of the claims 1 to 11, for food applications, or for breeding applications.

19. Use of the Brassica plant or their seeds, according to claim 18, for oil production and

for feed applications.

20. Use of the Brassica plant or their seeds, according to claim 18, as a parent plant in breeding for improving agronomical value of a Brassica plant, line, hybrid or variety.

21. Method of production of a POSH+ Brassica plant, wherein the method comprises the following steps:

a. crossing a first Brassica plant according to any one of claims 1 to 11 with a second POSH- or POSH+ Brassica plant; thereby obtaining a F1 hybrid plant;

b. selfing or backcrossing said F1 hybrid plant with said second POSH- or POSH+ Brassica plant;

c. selecting the POSH+ Brassica plant among the plant obtained in step b), using at least one Raphanus SNP within at least one of the markers SEQ ID NO 19, SEQ ID NO 20 or SEQ ID NO 21 and

d. further selecting said POSH+ Brassica plant for the absence of at least one of the Raphanus SNPs within at least one of the markers of SEQ ID NOs:4-18.

22. The method according to claim 21, wherein said absence of at least one Raphanus SNP is within a marker selected from the groups consisting of: SEQ ID NOs: 4-8 and SEQ ID NOs: 10-18.

23. The method according to claim 21, wherein at step d, said absence of at least one Raphanus SNP is within at least two of the markers SEQ ID NOs 4-18.

24. The method of any one of claims 21 to 23, wherein the first plant is a plant obtained from a representative sample of the seeds as deposited at NCIMB collection under the number 42444.

25. The method of production of a POSH+ Brassica plant according to any one of claim 1 to 11, wherein the method comprises the following steps:

a. providing a first POSH+ Brassica plant comprising a Raphanus introgression conferring the POSH+ trait, said Raphanus introgression including at least one of the Raphanus SNP within one or more of the following markers: SEQ ID NOs 4-18;

b. crossing said first POSH+ Brassica plant with a second POSH- or POSH+ Brassica

plant, thereby obtaining a F1 hybrid plant;

c. selfing or backcrossing the F1 hybrid plant with said second plant POSH- or POSH+;

d. selecting the POSH+ plant among the plant obtained in step c), further selecting for the presence of at least one Raphanus SNP within at least one of the markers SEQ ID NO 19, SEQ ID NO 20 or SEQ ID NO 21 and further selecting for the absence of at least one Raphanus SNP within at least one of the markers SEQ ID NOs: 4-18.

26. The method of any one of claims 21-25, wherein said first POSH+ Brassica plant comprises the Rf0 Ogura fertility restoration gene.

27. A Brassica plant obtained by the method of any one of claims 21-26.


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