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Breeders Rights About
About Plant Breeder's Rights
What are Plant Breeder's Rights?
Plant Breeder's Rights are exclusive commercial rights to a registered variety.
The rights are a form of intellectual property, like patents and copyright,
and are administered under the
Plant Breeder's Rights Act 1994 (the Act). The rights are applied for using application
forms available from the
Plant Breeder's Rights Office.
In relation to propagating material of the registered
variety, successful applicants have exclusive rights to:
(a) produce or reproduce the material;
(b) condition the material for the purpose
of propagation (conditioning includes cleaning, coating, sorting, packaging and grading);
(c) offer the material for sale;
(d) sell the material;
(e) import the material;
(f) export the material; and
(g) stock the material for any of the purposes described in
(a) to (f).
In certain circumstances, principally if the breeder has not had a
reasonable opportunity to exercise the right on the propagating material, PBR extends
to harvested material and, subject to a similar set of qualifications, to products obtained
from harvested material.
Exceptions to the breeder's right are the use of the variety
privately and for non-commercial purposes, for experimental purposes, and for breeding
other plant varieties. A variety can be used for these purposes irrespective of the existence
of Plant Breeder's Rights. Farm saved seed is permitted, unless the crop is declared by
regulation to be one to which farm saved seed does not apply. Currently no crops have been
declared in this way.
Further details of the scope of the rights can be found in the Act.
Before you apply
If you have developed a new plant variety, protecting your property using Plant Breeder’s Rights (PBR)
should be considered as an integral part of your overall business strategy together with factors such as
profit potential, finance, production and marketing.
The PBR system is structured to enable you to make this decision before the major costs of
registration are encountered.
For example, exploitation of your new variety before making a PBR application is possible provided
it is done within strict time limits. Sales of the variety in Australia are allowed for up to 12 months
before lodging an application. Sales overseas are allowed for 6 years for trees and vines or 4 years
for other species.
In addition, filing an application is quite inexpensive (currently $300) and provides a prima facie
assessment of whether or not your variety potentially meets the registrability criteria. Once an
application is accepted, it is covered by provisional protection against infringement. You then have
a minimum of 12 months to further consider its commercial worth and to resolve issues such as finance
and licensing and decide if further effort in pursuing “full” PBR protection is worthwhile.
If you are thinking about PBR protection for the first time, then it may be useful to contact an
IP Professional or an Accredited Qualified Person (QP).
Other forms of protection
You should consider other forms of protection in addition to PBR. These include:
- Trade Marks for a word or symbol that distinguishes your products or services (note a variety
name does not function as a Trade Mark);
- Patents. Potentially a patent can be sought for plant material as well as for the processes used
to produce it. In Australia a PBR and a patent may apply to the same variety provided all of the
relevant criteria are met.
What if I decide not to apply for PBR?
Having considered all the issues you may decide that PBR is not the best option for you. Perhaps you
prefer to keep your variety as a trade secret, for example. In that case you would have to assess the
risk and consequences of someone obtaining your variety without your permission or as has happened,
independently breeding an indistinguishable variety.
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.
Who can apply for
Plant Breeder's Rights?Applications are accepted from the original breeder
of a new variety (from their employer if the breeder is an employee of an organisation)
or from a person who has acquired ownership rights from the original breeder.
Overseas Breeder's or owners must appoint an agent to represent their interest in Australia.
Eligibility for RegistrationOnly new or recently
exploited varieties can be registered. A new variety is one which has not been sold with
the breeder's consent. A recently exploited variety is one which been sold with the
breeder's consent for up to 12 months in Australia and for overseas varieties this
limit is up to four years ( with the exception of trees and vines in which a six year
overseas prior sale limit is permitted).
To be eligible for protection the applicant must show that the new variety is
Distinct, Uniform and Stable. To obtain
acceptance of an application and provisional
protection it must be established that there is a prima facie case
that the variety is distinct from all other varieties of common knowledge. To
obtain a grant of PBR the applicants must verify these claims normally by conducting
a comparative test growing which includes the new variety and the most similar
varieties of common knowledge.
Steps in Applying for Plant Breeder’s Rights
Below are the general steps involved in applying for PBR. An application is lodged in two main parts, Part 1 and Part 2. The initial application (Part 1) provides details of the applicant, origin of the variety and a prima facie case for eligibility. If the variety is already commercialised in Australia or overseas then time limits apply (prior sale). If a Part 1 application is not received prior to expiry of the eligible prior sales period it is not eligible for protection. The Part 2 application provides evidence in support of the claims made in the Part 1 and provides a detailed description of the variety. Details of differences from other similar varieties are also included.
- Obtain from the breeder a signed authorisation to act as their agent in Australia for the variety in question if your role is as the Australian agent of an overseas breeder. Complete form PBR00004
- Complete the Application Part 1 – General Information form PBR00001
- Complete the Supplementary Pages to the Part 1 Application form PBR00003 if the applicant resides overseas
- Supply a photograph of the new variety
- Pay the Application Fee
- Engage the services of the nominated accredited ‘Qualified Person’ PBR00005 to plan and supervise the comparative growing trial. Advise the QP to liaise with the nominated PBR examiner for a possible field inspection.
- Nominate an accredited ‘Qualified Person’. Check if the Qualified Person is accredited for the species.
- If the variety is an Australian species, despatch as soon as possible a herbarium specimen
- Conduct a comparative growing trial to demonstrate Distinctness, Uniformity and Stability (DUS)
- PBR Office examines the application which may include a field examination of the comparative growing trial
- Submit the detailed description of the variety using the Interactive Variety Description System. The description will be published in the Plant Varieties Journal. (Qualified Person’s need a user name and password to access the system).
- Submit a comparative photo of the variety for publication in the Plant Varieties Journal
- Complete the Application Part 2 – Description of New Variety form PBR00002
- Pay the Examination Fee
- Deposit propagating material in a Genetic Resources Centre and submit the form PBR00009
- Publication of a description and photograph comparing the new variety with similar varieties in the Plant Varieties Journal, followed by a six-month period for objection or comment
- Upon successful completion of all the requirements, resolution of objections (if any) and payment of the Certificate Fee, the applicant(s) receive a Certificate of Plant Breeder’s Rights.
New Legislation - the Plant Breeder's Rights Act 1994To conform with the 1991 revision of the International Convention for the Protection of New Varieties of Plants (the UPOV Convention), the Australian Parliament has passed new legislation, the Plant Breeder's Rights Act 1994, replacing the Plant Variety Rights Act 1987, which has been repealed. The principal changes are:
- In tree and vine varieties, PBR continues for 25 years from the date of granting, and in all other varieties, for 20 years from the date of granting;
- Sale in Australia with the breeder's consent will be permitted for up to one year prior to applying for PBR;
- Sale overseas with the breeder's consent will be permitted in tree and vine varieties for up to six years and in all other varieties for up to four years prior to applying for PBR;
- Farm saved seed will continue to be allowed, unless the crop is one declared by regulation to be one to which farm saved seed does not apply;
- Intentional infringement of a breeder's rights attracts a penalty of $55,000 for individuals and the penalty for corporations is potentially five times greater, ie $275,000;
- Breeder's are deterred from taking unfair advantage of other Breeder's' efforts by the introduction of the concept of the essentially derived variety (EDV). A breeder who believes such a situation has occurred is able to apply to the office to have the second variety declared an essentially derived variety;
- Transgenic plants, algae and fungi can be protected;
- Plant Variety Rights granted under the old Act are treated as if they had been granted PBR; and
- Applications made under the old Act, but not finalised, are dealt with under the provisions of the old Act as if that Act were still in force.
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