Extending your plant breeder's rights

If someone uses harvested material from the plant variety you've protected with a plant breeder's right (PBR), or develops a variety that's been bred from your variety or one that's not different in any important characteristic to your PBR, you can use your IP rights to protect your commercial interests. 

Claiming further rights after your PBR has been granted

While a PBR is granted for a particular new variety of plant and for propagating material from that variety, in some cases you can claim further rights. You can extend your rights to:

  • Harvested material
  • Products of harvested material
  • Plant varieties that could only be developed from your PBR protected variety, known as dependent varieties and essentially derived varieties
  • Propagating material of dependent varieties and essentially derived varieties.

Extending rights to harvested material and products

You can exercise your right on the harvested material or products of the harvested material in specific circumstances, which include:

  • When you believe you haven't had a reasonable opportunity to exercise the right on the propagating material.

Extending rights to dependent varieties

You can claim rights to varieties that can only be reproduced by the repeated use of your PBR protected variety.

Extending rights to essentially derived varieties

Where someone else breeds a new variety from your PBR variety, you can seek a declaration that the second variety is essentially derived from yours.

If successful, you'll then have some ownership over the second variety.

This means:

  • The second variety falls within the scope of the initial variety
  • More than one person has rights to the second variety
  • The two parties will need to agree to conditions of commercialisation.

The declaration on the second variety can be made whether or not that second variety has a PBR granted or an application is in process.

What is an essentially derived variety?

Essentially derived varieties (EDV) share all the essential characteristics of a registered plant variety but are clearly distinguishable. Therefore, they may qualify for plant breeder’s rights registration on their own.

Essential characteristics are heritable traits that contribute to the principal features, performance or value of the variety. Their practical application depends on the specific plant and its commercial context.

Extending rights to propagating material of dependent varieties and essentially derived varieties

Along with protecting the propagating material of the protected variety, PBRs can also include propagating material of dependent varieties and EDV.

How do I pursue extending my PBR rights?

If you want more information about the circumstances under which PBR rights may be extended, you can contact us via PBR@ipaustralia.gov.au. We also recommend seeking professional assistance.