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5.6.8.15 Agriculture and Horticulture

Date Published

Case Law

Following National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252; (1961) RPC 134, agricultural and horticultural processes are patentable, provided they are not excluded by any other of the "traditional principles" (as referred to in NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd 32 IPR 449).

"Seeing that the promise which he offers is some new and useful effect, there must of necessity be some product whereby the validity of his promise can be tested"

(NRDC supra at page 145).

Thus, "a method of eradicating weeds from crop areas containing a growing crop" is patentable.

Other agricultural and horticultural processes which have been considered patentable include:

  • preventing male gametes in grass from reaching maturity;

  • sterilising male anthers in plants;

  • the production of genetic variations by exposing plants to applied magnetic or other force fields;

  • the asexual propagation of pineapple plants by tissue culture techniques; and

  • the production of male sterile maize by genetic selection.

Having regard to the decision in Ranks Hovis McDougall Ltd's Application [1976] AOJP 3915, a new plant or animal (provided it is not one that is naturally occurring) can be regarded as a manner of manufacture if it:

  • involves the technical intervention of man; and

  • is useful in economic affairs.

(See also 5.6.8.12 Micro-Organisms and Other Life Forms).

Examiners should note that human beings are not patentable due to a specific exclusion under s18(2).

The treatment of animals is also patentable, following NRDC (supra). Thus, for example, an application in which a claim was directed to a method of tenderising meat products by the introduction of enzymes into the vascular system of an animal before slaughtering was considered patentable. Similarly, an example of a method of treating animals which was allowed involved the treating of cattle for anaplasmosis (see Wellcome Foundation Limited v The Commissioner of Patents (1980) AOJP 2759), although the High Court also considered in that case that a package and contents including written instructions was unpatentable.

Amended Reasons

Amended Reason Date Amended

Published for testing
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