If you have developed a new plant variety, you should consider applying for a plant breeder's right (PBR) to protect it.
To apply for a PBR you must be an Australian resident, or an Australian agent representing an overseas breeder or owner.
The following people can submit an application for a PBR:
- the original breeder of a new variety (if the breeder is an employee of an organisation then their employer can submit an application)
- a person or organisation that has acquired ownership rights from the original breeder.
Only new varieties or varieties which have been sold as a variety within the allowable prior sale period can be registered. Check the criteria for protection and make sure your plant variety is new by conducting an Australian plant breeder’s rights search.
Selling your new variety
Selling your new variety before making an application for a PBR has strict time limits. These time limits are taken strictly from the first day the variety was up for sale. If you have sold your new variety for longer than this time, then you cannot apply for a PBR.
Sales of the variety are allowed for:
one year for sales in Australia
six years for trees and grapevines (Actinidia (Kiwifruit), Bougainvillea, Campsis, Hedera and Vitis (grapevine)) sold overseas
four years for all other species sold overseas.
Definition of a sale
A sale is defined as the supply of propagating or harvested material in exchange for money or goods, by way of let or barter (including services), provided that it is done with the breeder’s consent.
It is not relevant whether or not the exchange occurs privately, to the public, to wholesalers, in small numbers or below market value.
In certain circumstances, some activities relating to the exchange or disposal of materials derived from multiplying and evaluating the variety are not considered as a sale.
Deciding to apply for a PBR
Applying for a PBR has several stages, including a growing trial. However, filing the Application part 1 is quite inexpensive. This provides an initial assessment of whether your variety is likely to meet the criteria for registration.
An accredited qualified person (QP) can help you with this decision and with the application process. The expertise of a QP is required for parts of the application process, and you need to nominate your chosen QP when you submit your application part 1 form.
Once your Application part 1 is accepted, your plant variety is covered by provisional protection for 12 months. This means that you are considered the grantee, but cannot take any court action for infringement until the variety is granted full PBR protection. This gives you time to decide if you will conduct a growing trial, and proceed with Application part 2 for full PBR protection.
Other forms of protection
Trade marks and plants: trade marks are used to distinguish the goods and services of one trader from those of another. While a trade mark cannot be used as a variety name, it can be used as a banner or brand under which a range or series of varieties can be sold.
Patents and plants: sometimes new plants can also be patented. For example, it is possible to have a patent on a unique plant gene for disease resistance. The gene may be incorporated into plants of a variety, which can then also be protected by a PBR.