Chapter 5: Plant Breeder's Rights
IP Report 2020
Plant breeder’s rights
Plant breeder’s rights (PBRs) provide plant breeders a form of legal protection for new varieties of plants. To be eligible for protection, up to a maximum term of 25 years, a plant variety must be clearly identified, distinguishable from other varieties, uniform and stable upon propagation.
In commercial contexts, plants may be both a product (harvested material) and the means for producing the product (propagation material). Under the plant protection scheme in Australia, rights holders can collect royalties either on the sale of harvested materials or on the sale of products made from the harvested materials.(23)End note 23. Thomson, R. 2014. The yield of plant variety protection. American Journal of Agricultural Economics, 97(3): 762-785. The purpose is to encourage investment in breeding, efficient breeding practices, and cultivation of attributes most valued by growers and consumers.
PBR applications and grants: In 2019, a total of 281 PBR applications were filed at IP Australia, down 103 applications, or 27 per cent from their level in 2018. Following a relatively stable growth trend between 2012 and 2016, annual change in application levels has been volatile over recent years (Figure 21). The low numbers of applications for PBRs generally mean small annual fluctuations result in large proportional rates of change. Further, application levels reflect the decision-making of a small number of applicants, so these changes are to be expected.
While applications have decreased, the number of PBRs that were granted in Australia increased by 25 per cent to 278 in 2019, its highest level in a decade. To be granted, an application must pass a substantive examination process and a comparative growing trial.
Figure 21: PBR applications and grants, 2010-19
Plant varieties: The fall in PBR applications in 2019 is attributable to a fall in applications for fruit crop varieties. Fruit crops have been on a growth path since 2012 (Figure 22). In 2018, with 148 applications, Fruit crops outranked Ornamentals as the leading plant group. In 2019, Fruit crop applications fell dramatically by 91 applications, or 61 per cent from their 2018 peak.
Ornamental varieties were the strongest performing plant group in 2019, with 124 applications, or 44 per cent of the total. Applications for ornamental varieties had been in steady decline since 2000, with a peak of 259 applications in 2001, but grew in 2019.
Ornamentals were followed by Field crops and Fruit crops, both with 57 applications in 2019. The highest growth among plant varieties was in Field crops, which rose by 36 per cent (to 57) making this plant group the second strongest performer in 2019.
Figure 22: Number of PBR applications in varieties of Ornamentals, Fruit crops and Field crops, 2010-19
The drop in applications for Fruit crops occurred during a period in which flooding in North Queensland and drought in New South Wales has affected fruit harvests.(24)End note 24. Fookes, T. 14 March 2019. Drought, heat and floods blamed for limited fresh produce supply on supermarket shelves. Australian Broadcasting Corporation. Viewed 04 February 2019, https://www. abc.net.au/ news/rural/2019-03-14/ expensive-veggies-and-small-fruit-result-from-drought/ 10895426. Changing environmental conditions such as drought can impact the ability of growers to purchase plant varieties, and lead growers to reduce breeding or delay the release of new plant varieties.(25)End note 25. Sanderson, J. and Adams, K. 2008. Are plant breeder’s rights outdated? A descriptive and empirical assessment of plant breeder’s rights in Australia, 1987-2007. Melbourne University Law Review, 32: 980-1006. Applications by the State of Queensland fell from nine in 2018 to zero in 2019. Primarily, however, the fall in fruit varieties reflects a decrease in filings from US breeders.
Countries of origin: The US and the Netherlands are the two major overseas countries of origin for PBRs in Australia. In 2019, applications from the US fell from 87 to just 35. In the same period, applications from the Netherlands also decreased, from 42 to 27; however, the Netherlands’ share of non-resident applications has remained relatively stable, rising from 19 to 20 per cent in 2019.
The US is a major source of fruit varieties in Australia. In 2018, a spike occurred in US-origin applications for fruit varieties, which rose from 42 in 2017 to 72 to 2018. In 2019, the fall in US-origin applications can partly be attributed to two California-based fruit breeders: Zaiger Genetics filed two applications, down from 28 in 2018, while applications from Driscoll fell by eight to zero in 2019.
Resident and non-resident filings: Between 2012 and 2018, non-residents accounted for most applications in Australia (Figure 23). In 2019, Australian residents filed more applications than non-residents for the first time since 2011. Applications from non-residents decreased by 38 per cent in 2018-19 (from 218 to 135). Applications from residents also decreased, but at a lesser rate of 12 per cent (from 166 to 146).
The large (25 per cent) increase in PBR grants observed in 2019 was mostly attributable to Australian residents, who increased their grants by 43 per cent on their level in 2018.
Figure 23: Share of PBR applications by residents and non-residents, 2010-19