Plant Breeder’s Rights (PBR) examined: the ins and outs of PBR

Published: 
19 November 2015

Plant Breeder’s Rights (PBR) are used to protect new varieties of plants and gives the owner the exclusive right, or to licence another person, to do the following acts in relation to propagating material of the variety:

(a)  produce or reproduce the material 
(b)  condition the material for the purpose of propagation 
(c)  offer the material for sale; 
(d)  sell the material 
(e)  import the material; 
(f)   export the material; 
(g)  stock the material for the purposes described in parapgraph (a), (b), (c), (d), (e), or (f).

PBR Rights also allow the owner to control the production, distribution, and receive royalties from the sales of plant varieties.

For example, South Australian company Cleggett Wines own the PBR for the grape variety ‘Shalistin’, which gives them commercial rights over this particular grape variety for 25 years. ‘Shalistin’ is a rare and unique grape variety as it’s the only white cabernet sauvignon. Cleggett Wines have been able to license the variety to other growers using their PBR and receive royalties which continue to increase as the grape becomes more popular.

If you have developed, or are in the process of developing a new plant variety, protecting your intellectual property (IP) through PBR should be considered as an integral part of your overall business strategy. Okay, let’s get started…

So what are PBR?

PBR are exclusive commercial rights for the use of new and distinguishable plant varieties. Only eligible new, recently exploited or essentially derived varieties can be registered. Protection offers control over the production, sale and distribution of the new variety, allows you to receive royalties from the sale of plants and to sell your rights.

PBR are personal property and can be assigned, sold and transferred to other parties.

Australia’s PBR scheme is administered by us under the Plant Breeder’s Rights Act 1994 and conforms to the International Union for the protection of New Varieties of Plants (UPOV 1991). The legislation requires all breeders to use the services of an accredited qualified person.

Why would I need a PBR?

For agricultural businesses, the exploitation of new plant varieties can produce significant competitive advantages.

Plant breeders who successfully register their new variety gain the right to exclude others from producing, reproducing, conditioning for the purpose of propagation, selling, importing, exporting and/or stocking the material of the new variety.

PBR protects dependent varieties - varieties that can only be reproduced by the repeated use of the PBR protected variety and essentially derived varieties - varieties that are derived from a protected variety that retains its essential features. PBR also protects the registered name and synonym of the variety from use in relation to other similar plants.

How do I file?

There are two parts to the PBR application process. The Part 1 Application Form is filed first and provides an initial assessment of whether your application establishes a prima facie case for treating the plant variety as distinct from other varieties.

You can file with the services of a qualified person or IP professional. Alternatively you can self-file online using eServices.

Filing of the Part 2 Application Form will then take place after a comparative growing trial is conducted. The purpose is to present evidence of your variety for examination of distinctiveness, uniformity and stability (DUS).

After you have filed part 2, we will examine the claims made in part 1 and the results of the growing trial in part 2.

What is a qualified person?

Qualified persons, accredited by us, act as an applicant’s technical consultant. They oversee the comparative trial and provide evidence that a variety meets DUS testing requirements.

A list of consultant qualified persons appears in each issue of the Plant Varieties Journal (PVJ).

How much does it cost?

The application fee of $345 (if paid via eServices) must accompany the Part 1 Application form at the time of lodgment. Further costs will apply when filing with an IP professional.

There are no fees to file the Part 2 Application Form.

Examination of a single application will cost $1610. Discounted examination fees may apply, depending on the circumstances of examination.

After the description has been published, successful applicants will be asked to pay the certificate fee of $345.

An annual renewal fee of $345 (if paid via eServices) will then apply to maintain the grant of your PBR.

How long does it take?

We will process your Part 1 Application within approximately three months. Once it is accepted, it is provisionally protected until field trials can verify your claims.

The First Examination Report will be issues within 12 months from acceptance of the Part 1 Application but the examination process, including the growing trial, can take up to three years.

An opposition period of at least 6 months will apply before it will be granted and enforceable.

For grapevines and trees, PBR will last for 25 years from the date of grant and 20 years for all other species.

What do I need to know about opposition?

Once a PBR has been published in the Plant Varieties Journal, third parties will have six months to formally object or comment on your application. Very few accepted PBR applications are opposed, but if yours is, you may wish to consider consulting your qualified person or IP professional.

Tip before applying

To save time and money when applying for PBR, it is important to do some basic research to make sure your variety is new and distinctive. You can search the PBR online database of plant varieties to find this out.

To help you prepare and file your PBR application you can read our Plant Breeder’s Rights Guide, which includes a full glossary of plant variety terms.

More information