You may wish to register a new plant variety overseas or import a variety from overseas and register it in Australia.
Registering your plant variety overseas
There is no international system for filing Plant Breeder's Rights (PBR) - you have to apply for PBR in each foreign country in the same way as you have to in Australia. Currently there are two exceptions:
- It is possible to apply for protection in the European Community (EC). This single application provides potential PBR protection in all EC countries
- Regional protection is also available in 16 African countries that are affiliated under the African Intellectual Property Organization (OAPI)
Australia's Plant Breeder's Rights scheme conforms with the International Union for the Protection of New Varieties of Plants (UPOV). UPOV members are obliged to treat Australian applicants in the same way as their own nationals (i.e. no special rules, other than the possible need for an agent, can be applied).
Registering in UPOV countries
- Australia belongs to UPOV. There are over 65 member countries, including all major industrial countries and Australia's key trading partners
- PBR registration systems are broadly the same in each of the UPOV member countries. Some differences may arise in the scope of protection and the administrative procedures in applying for and progressing an application
- Not every UPOV member protects every species
- Usually you can use the Australian application as the basis for an application in another UPOV member country
- UPOV members offer special concessions for commercialising the variety before an application is lodged. With the exception of asexually propagated plants in the USA, members allow the variety to have been sold for up to four years outside the jurisdiction (or six years for trees and grapevines (Vitis vinifera))
Registering overseas - general information
- The fees for obtaining and maintaining a PBR vary from country to country
- PBR may be called plant variety rights (PVR) or plant variety protection (PVP) - these are effectively the same
- In some countries, you have to use the services of a local agent if you are not a resident of that country
- In some countries you may be required to provide an address in that country for service of documents. It may be possible to arrange for a friend or business contact to forward correspondence to you in Australia
- If English is not an official language used by the receiving office of the country, you will need to supply a translation of the basic documentation in an official language used by that office. (For UPOV applications, the use of their standard forms, where applicable, can avoid much of the translation expense)
- If you make an application in a foreign country within 12 months of your Australian application, you may be able to claim the date on which you lodged your Australian application as the priority date of your application. If you intend to claim such a priority date, you will be required to provide a copy of the Australian application. Certified copies can be obtained by contacting us and paying the appropriate fee
We do not provide application forms, receive applications or fees for or on behalf of receiving offices in other countries or give advice or assistance with PBR applications to foreign countries.
Registering new varieties from overseas
To register PBR for plant varieties developed overseas, you have to follow the same application process as for a new variety developed in Australia, including the comparative growing trial.
In some circumstances a comparative growing trial in Australia may not be necessary. The PBR Act allows DUS (distinctness, uniformity and stability) data produced in other UPOV countries to be used in lieu of conducting a local comparative growing trial, provided certain conditions are met relating to the filing of applications, sufficiency of the data and the likelihood that your variety will express the distinctive characteristics in the same way had it been grown in Australia.
The use of overseas data could be considered where:
- the first PBR application relating to the candidate variety has been lodged overseas
- the variety has previously been test-grown in a UPOV member country using official UPOV test guidelines and test procedures (i.e. testing that is equivalent to a comparative trial in Australia)
- either all the most similar varieties of common knowledge (including those in Australia) have been included in the overseas DUS trial or the new overseas variety is so clearly distinct from all the Australian varieties of common knowledge that further DUS test growing is not warranted
- sufficient data and descriptive information is available to publish a detailed description of the variety in the accepted format in the Plant Varieties Journal (PVJ) and to satisfy the requirements of the PBR Act
If the requirements for the use of overseas data are satisfied, the qualified person prepares and submits the detailed description in the normal way, including distinguishing the variety from the most similar varieties of common knowledge.
Some applicants choose to combine the use of overseas data and a limited growing trial in Australia (a verification trial). These verification trials are used to remove doubt that distinctive features of the variety are expressed as described in the overseas data. Verification trials may not always include comparators, although depending on the method used to assess uniformity, including the most similar varieties of common knowledge, may be useful.
Exceptions - overseas data
We do not accept overseas data for some species due to wide genotype and environment interactions. Varietal descriptions from overseas trials have been consistently different from those obtained from trials grown under Australian conditions.
A full comparative growing trial must be conducted in Australia for Solanum tuberosum (potato).
For specific assistance and advice you can contact an IP professional.
- International Union for the Protection of New Varieties of Plants (UPOV)
- World International Property Organisation (WIPO)
- WIPO directory of international IP offices
- Plant Breeder's Rights Act 1994
- Plant Variety Journal
Last Updated: 06/3/2014