The Federal Court held that claims to wheat grain of the species Triticum aestivum with specified triple-null SSIIa mutations and phenotypic characteristics were supported under s 40(3) of the Patents Act 1990 across their full scope, notwithstanding that the specification did not demonstrate the claimed phenotype in every wheat variety tested. Beach J accepted expert evidence that the specification provided a proof of principle enabling the skilled person to produce grain with the claimed phenotype in any bread wheat variety through a standard breeding and selection program, and that the failure to achieve the claimed amylose content in the EGA Hume variety in Example 4 was attributable to the small scale of the experiment rather than any inherent limitation. The case illustrates that where a patent discloses a principle of general application within a species supported by a scientific rationale (here, impaired amylopectin synthesis diverting carbon to fibre components), the patentee need not demonstrate success in every embodiment, provided the skilled person would reasonably expect the invention to work across the claimed range without undue burden or invention.
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