Protecting Plant Varieties in Australian and New Zealand
What are Plant Breeder’s Rights ?
In Australia, new plant varieties can be protected under the Plant Breeder’s Rights Act 1994 (PBRA).
The PBRA complies with the International Convention for the Protection of New Varieties of Plants (the UPOV Convention) to which Australia is a signatory. This means that an application filed in one member state can claim priority to an earlier corresponding application filed in other member states.
What is protected?
The PBRA provides protection for new plant varieties. A plant variety can include all fungi and algae but not bacteria, bacteroids, mycoplasmas, viruses, viroids and bacteriophages.
Both the name and synonym of a plant variety are also protected. In this respect the protection granted serves a similar function to the trade marks regime.
What are the requirements for protection?
A plant variety is registrable if the variety:
(a) has a breeder;
(b) is distinct, uniform and stable (DUS); and
(c) has not been exploited or only has recently been exploited.
What does exploitation mean?
A plant variety is taken not to have been exploited if, at the date of lodging the application for PBR in the variety, plant material of the variety has not been sold by (or with the consent of) the breeder.
A sale is permitted in Australia for up to one year prior to applying for PBR and sale overseas is permitted for up to four years (six for tree and vine varieties) prior to making an application. Certain sales may be exempted which we can advise further.
What about deposits?
Before an application can be granted, propagating material of the variety must be deposited in a Genetic Resource Centre (GRC).
What rights are granted?
A PBR provides the breeder with the right to exclude others from doing a number of different acts in relation to the propagating material of the variety, including:
(a) produce or reproduce the material;
(b) condition the material for the purpose of propagation;
(c) offer the material for sale;
(d) sell the material;
(e) import the material;
(f) export the material;
(g) stock the material for the purposes described in paragraph (a), (b), (c), (d), (e) or (f).
Propagating material in relation to a plant of a particular plant variety has been defined as “any part or product from which, whether alone or in combination with other parts or products of that plant, another plant with the same essential characteristics can be produced.” For example, seed and cuttings.
PBR extends to essentially derived varieties (EDV) and certain dependent varieties.
The PBR can also extend to harvested marterial in certain circumstances.
And for how long?
PBR is granted for a maximum term of 20 years, with the exception of 25 years for trees and vines, from the date of grant of the right. Once the PBR has expired the variety may be freely used by the public.
Are there any exemptions ?
The PBRA provides exemptions to infringement in certain circumstances, including:
(a) privately and for non-commercial purposes; or
(b) for experimental purposes; or
(c) for the purpose of breeding other plant varieties.
Conditioning and use of farm saved seed is allowed. This is known as "farm-saved seed exemption" or "farmer’s privilege".
Are there any other forms of protection available for new plant varieties?
It is possible to protect a plant variety under both patent law and PBRs. Further information available on the Freehills Patent Attorneys expertise page, see Plant Patents & PBRs and Agribusiness and Agrochemicals Patents.
What about pending or anticipated legislation?
A review of the current legislation has been conducted by the Advisory Council of Intellectual Property (ACIP). Key recommendations were published in 2010. For further information see Plant Breeder's Rights - Summary of Issues and Recommendations for Legal Reform in ACIP's Final Report and US Plant Patent Practitioners - Australian Legislative Developments.