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New plant varieties

What are plant breeder's rights (PBR)?

Plant breeder's rights (PBR) describes the type of intellectual property that protects new varieties of plants and trees, including:

  1. new varieties of plants and trees including flowers; vegetables; fruit trees, bushes and shrubs
  2. fruit harvested from a new variety of tree
  3. essentially derived varieties, which are varieties derived from a registered variety, which retain the same essential features, and do not show any important feature that make them different to the registered variety
  4. dependent varieties, which are varieties reproduced by the use of the registered variety
  5. in some circumstances, propagating material of the new variety (e.g. seed).

How can PBR help my business?

The registered holder of PBR is the only person entitled to commercially benefit from the new variety that is protected by the PBR.

If you are granted PBR you can make sure that your competitors do not 'free ride' on your innovation by taking or growing propagation material and profiting from that propagation.

This means that only you can market and sell the new variety protected by the PBR, and only you are entitled to profit from the PBR.

If a competitor 'copycats', 'free rides', or produces propagating material and attempts to profit from that, there are steps you can take to ensure that you are the only person in the marketplace who receives economic benefits from your new plant variety.

Licensing

In addition to being in the marketplace yourself, and making and selling the new variety protected by your PBR, another way that you can realise economic benefits from your PBR is by authorising other people to use your PBR. This is called 'licensing'.

When you license your PBR, you give another person the right to use your PBR.

You might, for example, grant a licence to another person whose business is located elsewhere (i.e. not a local competitor) in Australia or even grant a licence to a person in another country.

In that way your PBR is working even harder for you. You can receive profits from making and selling your new variety, and also receive a royalty from licensees making and selling your new variety.

What are the requirements to register PBR?

The requirements to register plant breeder's rights (PBR) are:

  1. there must be a breeder
  2. there must be a new plant variety, or the variety that you want to register must not have been sold in Australia for more than
    1. 12 months without the breeder's consent, or
    2. 4 years for overseas applicants (or 6 years for overseas applicants in relation to trees and vines) without the breeder's consent
  3. the new variety must be
    1. new and distinctive - that is, it must be different from a variety that is already available
    2. uniform - that is, its characteristics are present when propagated, and
    3. stable - that is, its characteristics remain the same in the course of a number of propagations
  4. the applicant must be the breeder, or a person who has acquired ownership rights from the breeder.

What do I need to consider when selecting a name for my new plant variety?

When your plant breeder's rights (PBR) application is successful, not only is your new plant variety protected, but its name is protected, as well as any synonym that is part of its registration.

The following table describes requirements for naming a new plant variety.

What a name must be What a name can be What a name can't be
A word or words An invented word Likely to deceive or cause confusion, including confusion with the name of another plant variety of the same plant class
Compliant with the International Code of Nomenclature for Cultivated Plants and codes under it A word or words with additional letters or figures A registered trademark, or a trademark sought to be registered, in relation to live plants, plant cells and plant tissues
The name of the variety in another country, if there is already an application in another country The name of a living person, or of a corporation, but only if that person or corporation consents A name that includes banned words, such as 'cross', 'hybrid', 'mutant', 'seedling', 'strain', 'variety', 'improved' or 'transformed'

What is the process for applying for PBR in Australia?

What should I consider before applying for PBR?

Factors that might be relevant in your specific circumstances, and that may influence your decision to apply for plant breeder's rights (PBR), include:

  • whether your new variety might already have been bred. To find out, you can search IP Australia's PBR database. The database has information on all PBR varieties in Australia
  • the cost of applying for PBR. View the latest PBR fees on IP Australia's website.
  • the cost of undertaking growing trials. A qualified person, who has been accredited as such by IP Australia, will be able to help you estimate that cost.

PBR application process

You can make an application for PBR to IP Australia. You can apply online, via fax or mail, or in person.

Acceptance of the application

If IP Australia is satisfied with your application, it 'accepts' the application, normally within a few months.

The result of acceptance by IP Australia is that you achieve provisional protection of the new plant variety.

Growing trial

The next major stage is undertaking a comparative growing trial of the new plant variety, which can take up to 18 months to complete.

The purpose of the growing trial is to demonstrate the 3 requirements for granting PBR - distinctness, uniformity and stability (see 'What are the requirements to register PBR').

Many applicants engage a 'qualified person' to plan and oversee the growing trial. Most trials are undertaken at centralised test centres.

Propagating material of the new variety must also be deposited in a genetic resources centre.

Examination

Further information relating to the growing trial is submitted to IP Australia.

IP Australia then examines the application. This might include a visit to the site where the growing trial is conducted.

After examination, if the eligibility for PBR is established, details of the application are published in the 'Plant Varieties Journal'.

Third parties have 6 months from publication in the 'Plant Varieties Journal' to oppose the application. PBR is granted if there are no oppositions by third parties, or any oppositions are resolved.

Granting a PBR can take about 2½ years, or even longer in the case of slow-growing plants and trees.

What is the process for applying for PBR outside Australia?

No 'worldwide' PBR

There is no such right as 'worldwide' plant breeder's rights (PBR). PBR is registered by a government of a country.

The Australian Government, for example, does not have power to register PBR that would apply in the United States. Nor does the United States Government have the power to register PBR that would apply in Australia.

No 'worldwide' PBR application

There is no international treaty that deals with an international application for PBR, unlike patents in relation to the Patent Cooperation Treaty or trademarks in relation to the Madrid Protocol.

This means that you must make an individual PBR application in each country where you are seeking PBR.

In practice, you would only seek PBR in those countries where you anticipated:

  1. selling your plant variety
  2. exporting your plant variety
  3. licensing your plant variety.

UPOV

The International Union for the Protection of New Varieties of Plants (UPOV) is an international treaty that makes provision for such matters as:

  1. the requirements for the protection of new plant varieties
  2. the application process
  3. the duration of PBR rights.

Countries that are signatories must have domestic laws that provide for the matters required by the treaty.

Australia's obligations under the treaty are met by the Plant Breeders' Rights Act 1994 (Cwlth).

What is the duration of PBR?

Plant breeder's rights (PBR) last:

  1. 25 years for trees and vines
  2. 20 years for other plants.

Given their longer growing time, trees and vines benefit from a longer duration of PBR.

What are my rights as a PBR holder?

Ownership

You own your plant breeder's rights (PBR); that is, you own the right to use the plant variety protected by the PBR.

Exploit

You have the exclusive right to exploit the plant variety protected by PBR.

Sale

Because PBR is an asset, it can be sold.

Gift by will

Like any other property that you own, you can make a gift of your PBR in your will.

Licensing

You can license the use of your PBR.

Rights to the plant variety's name and synonym

As the PBR owner, you have the sole right to use the plant variety's name and synonym that you registered with the plant variety.

Rights across Australia

As PBR operates throughout Australia, your rights operate across Australia.

Balance sheet

Because PBR is an asset, its value can be reflected in your balance sheet.

Pursuit of infringers

As the PBR holder you can stop a person infringing your PBR, or infringing the name of the plant variety of the PBR, by seeking an injunction, and/or seeking damages.

Criminal complaint

The improper use of PBR is a criminal offence, as is the improper use of the name of the plant variety of the PBR.