PBR and other IP rights
PBR are administered under the Plant Breeder's Rights Act 1994(PBR Act), which prescribes both the extent and limitation of the monopoly provided.
PBR grant a limited commercial monopoly to breeders of new plant varieties. PBR allow a breeder the right to exclude others from a range of activities, including producing and reproducing a protected variety.
PBR are personal property and can be assigned, sold and transferred to other parties.
Recording a mortgage
If you want to record the details of a mortgage that has been taken out on your PBR (or you have taken out on another person's PBR), you need to record this on the national online Personal Property Securities Register. Security interests such as mortgages can not be recorded on the Plant Breeder's Rights Register. More information is available in the Official Notice.
There is no international system for filing PBR. Generally, applications need to be filed in each country where protection is being sought. The European Community is an exception - a single application relates to protection in all participating countries. An application in Australia can usually form the basis of applications in other International Union for the Protection of New Varieties of Plants (UPOV) member countries.
Other forms of IP
There are also other forms of IP potentially available to you. Different combinations can be used to add value to a single variety, so do your research to ensure you get the right mix of protection for your circumstances.
The two most common additional options are trade marks and patents.
- Trade marks and plants: trade marks are used to distinguish the goods and services of one trader from those of another. While a trade mark cannot be used as a variety name, it can be used as a banner or brand under which a range or series of varieties can be sold.
- Patents: sometimes new plants can also be patented. For example, it is possible to have a patent on a unique plant gene for disease resistance. The gene may be incorporated into plants of a variety, which can then also be protected by PBR.
There are also some considerations for PBR under the Budapest Treaty.
Get professional advice
For specific assistance and advice on these options you could contact an IP professional.
Clash of PBR with other legislation
Other Australian legislation could impact on intended uses of a registered variety. It is feasible that the commercialisation of a new plant variety registered under the PBR Act could be restricted by legislation. Plant quarantine and plant biosecurity issues play a role in such matters. For example, current legislation may prohibit the use of that variety in food or the growing of that variety because it is a noxious weed or because of public health issues. Such matters are outside the scope of the PBR Act and it is the responsibility of the applicant to take them into consideration and to act appropriately.
Last Updated: 10/12/2012