Plant breeder's rights

Plant breeder's rights (PBRs) are similar to patents, but apply to new plant varieties. Registered PBRs offer the holder exclusive commercial rights to a registered variety (i.e. a plant, vine or tree). The holder has the legal right to exclude others from certain commercial activities related to the variety for a set period of time. The new plant variety must be distinct from other varieties, as well as being uniform and stable. All plant species except fungi, algae and bacteria are eligible for protection.

Purpose of PBRs

PBRs protect the propagating material of a plant variety (e.g. seeds, cuttings, graftings). In some cases, protection can be extended to harvested material, and products made from harvested material.

PBRs grant the breeder the right to exclude others from:

  • producing or reproducing the material
  • conditioning the material for the purpose of propagation
  • offering the material for sale
  • selling the material
  • importing the material
  • exporting the material
  • stocking the material for any of the purposes described above
  • using the plant variety's registered name, or a registered synonym of the name, in relation to any other plant of the same plant class.

Exceptions to infringement

PBRs will not be infringed where the variety is used for:

  • private purposes
  • non-commercial purposes
  • experimental purposes
  • breeding other plant varieties.

If you are undertaking these activities, you have legal protection against being sued by the owner for infringement. However, you should exercise caution and seek advice to determine whether your actions fall within an exception under the Plant Breeder's Rights Act 1994 (Cwlth).

Establishing PBRs for a plant variety

There are 3 requirements to establish PBRs for a plant variety.

  • In Australia, PBRs require formal registration with IP Australia. Unlike copyright, PBRs do not apply automatically upon creation.
  • Only new or recently exploited varieties can be registered. This means that you need to be careful how you use your new variety and when you apply for protection. A variety is considered 'new' when it has not previously been sold with the breeder's consent. A variety is regarded as 'recently exploited' when it has been sold with the breeder's consent for up to 12 months in Australia. For overseas varieties, this limit is extended to 4 years (with the exception of trees and vines, where a 6-year overseas prior-sale limit is permitted).
  • The new variety must be distinct, uniform and stable.

A new variety is considered 'distinct' when it is compared with a similar variety (or varieties) and is found to be different from them in sufficient ways (such as morphology, DNA and protein profiles).

A new variety is considered 'uniform' when the variety characteristics are displayed uniformly over a large population. Sometimes a small number of plants do not conform to all the distinctive characteristics of the variety, so allowances for these 'off-types' are made, within certain limits.

A new variety is considered 'stable' when, after repeated reproduction or breeding, the variety displays the same features and characteristics each time.

Duration of PBRs

It depends on the variety, but, like most IP schemes, PBRs are granted for a limited time. At the end of that time, the rights become publicly available.

  • For tree and vine varieties, the rights continue for 25 years.
  • In all other varieties, the rights continue for 20 years.

As with patents, trademarks and designs, to keep your PBR you need to pay maintenance fees once your new variety has been certified. If you fail to pay the annual fee within the required time, you may lose all of your rights to the variety.

Other IP protection for PBRs

You may wish to register a trademark for the variety if you intend to make a significant investment in advertising the variety.

If a plant variety is successful, the value of the trademark may even outlast the lifetime of the PBRs. When the rights expire, anyone can exploit the variety. However, as with many market choices, consumers may still prefer to buy products with the original brand.

Trademarks and variety names

A trademark cannot be, or be part of, the variety name. It is possible to use a trademark in conjunction with a variety name, with the variety name having equal importance.

PBRs and patents

It is possible in Australia to have a PBR and patent protection for the same plant variety.

A patent can be used to protect a process and components of a variety, such as gene technology. Together, PBRs and patents can be used to protect the variety if it meets the criteria (specifically 'novelty', and the requirement for an 'inventive step' or an 'innovative step').

PBR laws allow for an exemption for the use of a protected variety if it is used for research or further breeding. This is an automatic right and does not require prior permission. If a patent is involved, a licence from the patent owner may be required to use the protected material. However, this will depend on whether the activities have a predominantly research purpose rather than a commercialisation focus. Professional advice is likely to be needed on this issue.

Timing is very important if a patent is being sought as well as a PBR. Disclosure in any form affects the novelty of the invention. This potentially means that divulging the details of the new plant variety through the PBR application process could amount to disclosure in terms of patenting criteria. This may weaken future patent protection. Obtaining advice early is crucial before considering applications either for PBRs or patents.

Contracts for PBR owners

Generally, plant breeders seek PBRs to commercialise their innovations, and to recover their investment and make a profit, as others do with patenting. While PBRs are regulated by law, they become income-earners through individual contracts between the PBR owners and their customers.

Earning income from PBRs

The best way to obtain an income is to enter into a contract with someone who wishes to use or sell the variety. The contract will grant permission and specify conditions for use or sale, with a return to the breeder, usually payment in the form of a royalty.

PBRs apply to the various stages of development of a variety, from the seed to the end product. There are different points where permission can be granted to use the variety, and payments/royalties may be collected from the use and/or sale of the variety.

Seeking professional advice on PBR issues

To provide advice on PBRs issues, service providers need to be accredited and qualified. A qualified service provider, in collaboration with IP Australia, will accept responsibility for all aspects of a comparative trial, including the choice of comparative varieties, experimental design, data collection, statistical analysis and preparing a description of a new variety.

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