Plant breeder's rights (PBR) are exclusive commercial rights for a registered variety of plant. The rights are a form of intellectual property (IP), like patents and trade marks, and are administered under the Plant Breeder's Rights Act 1994. Prior to this, plant breeder's rights were administered under the Plant Variety Rights Act 1987.
If you have developed, or are in the process of developing a new plant variety, protecting your intellectual property through plant breeder's rights should be considered an integral part of your overall business strategy.
What do rights allow you to do?
Plant breeder's rights give you exclusive rights to:
- produce or reproduce the plant material
- condition the plant material for the purpose of propagation (conditioning includes cleaning, coating, sorting, packaging and grading)
- offer the plant material for sale
- sell the plant material
- import and export the plant material
- stock the plant material for any of the purposes described above
Exceptions to PBR - other uses of a plant variety
The exceptions to plant breeder's rights are the use of the variety:
- privately and for non-commercial purposes
- for experimental purposes
- for breeding other plant varieties
What can be registered?
Only eligible new, recently exploited or essentially derived varieties can be registered.
New varieties of all plant species are potentially registrable. A new variety is one that has not been sold with the breeder's consent beyond the allowable time period.
Recently exploited varieties
Recently exploited varieties of all plant species are potentially registrable. A recently exploited variety is a plant that has not been sold with the breeder's consent beyond 12 months before application in Australia. For overseas varieties, this plant should not have been sold for more than four years (six years for trees and grape vines).
Essentially derived varieties
PBR can also extend to essentially derived varieties. These varieties are derived from the protected variety, retaining essential features and do not exhibit any important features that differentiate it from the protected variety.
It is in the public interest, and the aim of the PBR Act, that plant innovation is encouraged. Therefore further breeding based on PBR varieties is legal.
However, PBR protection can extend beyond the new variety to certain other varieties. For example, PBR can extend to varieties that can only be reproduced by the repeated use of the PBR protected variety (dependent varieties).
In certain circumstances PBR also extends to harvested material and, subject to a similar set of qualifications, to products obtained from harvested material. An example is if a breeder has not had a reasonable opportunity to exercise their right on the propagating material and that material is further reproduced.
Search existing plant varieties
For more information about registered plant varieties, you can search all currently registered varieties on the Plant Breeder's Rights Database.
What if I decide not to apply for PBR?
You may decide that PBRs are not the best option for you - you could decide to keep your new plant variety secret or make it public.
Keep it secret
If you prefer to keep your plant variety secret, you would have to assess the risk and consequences of someone obtaining your variety without your permission or, as has happened, independently breeding a very similar (indistinguishable) variety.
Make it public
Another alternative is to openly use and publish details about your variety. This will prevent someone else obtaining a PBR or a patent for the same thing, but could also allow your competitors to freely use your variety for their own benefit.
Get professional advice
For specific assistance and advice you can contact an IP professional.
Last Updated: 24/9/2014