IP Report 2019

Plant breeder’s rights

PBRs enable plant breeders to protect new varieties of plants for commercial ends. Rights holders are protected so that they can experiment in plant breeding, or direct production of improved varieties and market materials for their propagation. PBR owners can exclude others from commercially using both a registered variety and the variety’s name.

PBRs provide a maximum duration of 25 years of protection for eligible plant varieties. To receive protection, a plant variety must be clearly distinguishable, uniform and stable on propagation. In addition, a plant variety must be clearly identified, as must the person or persons responsible for its breeding.

PBR applications and registrations: In 2018, 384 PBR applications were filed in Australia. In the same year, 222 applications were registered at IP Australia. To be registered, an application must pass a substantive examination process and, in some cases, a comparative growing trial.

Figure 14 shows growth trends in PBR applications and registrations over the past decade. In 2018, PBR applications grew by 12 per cent, returning to their 2016 level. Registrations fell by around nine per cent, from 245 in 2017 to 222 in 2018.

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Plant varieties: Two plant groups—ornamentals and fruit crops—were the strongest performers in both applications and registrations in 2018. Fruit crops comprised 39 per cent of applications and 18 per cent of registrations. Ornamental plant varieties accounted for 28 per cent of applications but nearly half of registrations (48 per cent).

In terms of applications, fruit crops are on a growth path, whereas applications for ornamentals appear to be in decline (Figure 15). Over the past decade, PBR applications for fruit crops have increased at a compound annual growth rate of seven per cent. In comparison, PBR applications for ornamentals have decreased at a compound annual growth rate of five per cent.

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Country of origin: Figure 16 shows the number of PBR applications, by applicant group, for the period 2009-18. Non-resident applications accounted for the majority share (57 per cent) of total applications in 2018. Growth was reasonably consistent in resident and non-resident applications.

Figure 16 is a column graph showing PBR applications for residents versus non-residents from 2009-2018

In 2018, the US retained its position as the largest foreign source of both PBR applications and PBR registrations in Australia. Of the total applications filed with IP Australia, the US accounted for nearly a quarter, followed by the Netherlands which filed more than a tenth.

In 2017 (latest data), WIPO ranked the Netherlands and the US second and third, respectively, as origin countries for PBR applications filed worldwide. Both countries recorded growth in worldwide applications in 2017.1 Consistent with these trends, both countries increased their share of total applications filed with IP Australia in 2018.

According to the WIPO data, Chinese applicants were the most active in filing PBR applications worldwide in 2017. However, Chinese applicants filed almost exclusively at their home office, whereas plant breeders from the Netherlands and the US filed most of their applications overseas.2

Karen Martin: Pink blush custard apple

Karen Martin and and husband Robert

It has been more than 20 years since a unique variety of custard apple was bred at Yanalla Farms on Queensland’s Sunshine Coast. Called pink blush, this variety matures late into the traditional custard apple season and turns orange-pink in appearance when it’s hit by the sun.

With the guidance and support of friends and colleagues who had been through the process of filing for plant breeder’s rights, Karen Martin and her husband Robert discovered the business opportunities protection could help them achieve. In 2015, they sought protection for pink blush, with the variety officially registered in 2017.

And the work now begins to develop a market and demand for their variety.

‘For us, it’s a building process,’ Martin explained. ‘We now have a future we can build on and see different opportunities. There will be new income streams that we will have from this plant—which is us selling the fruit, licensing the plant to other commercial growers—and once that is done, we will set up a marketing group. That will allow us to control the number of growers and the quality of the fruit, and to be a price shaper to help create a niche market in which our product can be sold at a higher price.’

There are additional hurdles still to go through, with the next step being to seek additional IP protection, including trade mark protection for a brand that will be well-recognised. And they will also be looking at international protection.

‘That’s the most complicated part that I am still trying to get my head around,’ Martin said.

But as she can see the potential market opportunities, these are processes Martin intends to go through—with additional support and a lot of market research.

For other plant breeders thinking about applying for plant variety protection, Martin shared words of advice. ‘Don’t release your variety early,’ she said. ‘Don’t even give a cutting to friends. We didn’t do that and it wasn’t until the plant breeder’s rights were approved that we started talking about the plant. But you also need to speak to people that have gone through the process. You can learn from their experience to help create shortcuts to the process.’

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End notes

  1. World Intellectual Property Organization. 2018. World Intellectual Property Indicators 2018. Geneva: WIPO; 176.
  2. World Intellectual Property Organization. 2018. World Intellectual Property Indicators 2018. Geneva: WIPO; 176–183.