Applying for Plant breeder's rights (PBR) is a staged application process. Application part 1 is the first step, and provides provisional protection for your new plant variety.
You can only apply for PBR for varieties which have been commercialised in Australia for less than 12 months. This time is known as the eligible prior sales period. You need to submit your Application part 1 no more than 12 months from the first day that you sold or advertised your new variety. If even one day over 12 months has gone by then you are unable to apply for plant breeder’s rights over that new variety. Sale overseas is permitted for up to four years (or six years for tree and vines (Actinidia (Kiwifruit), Bougainvillea, Campsis, Hedera and Vitis (grapevine) varieties) prior to applying for PBR.
Filing your Application part 1
In your Application part 1 you provide your details, information about the origin of the new plant variety and an initial case for eligibility.
Application part 1 can be submitted by either of the following means:
PRISMA – the online application tool developed and maintained by UPOV that guides the user in submitting their application in Australia (as well as other participating authorities, if required). Once submitted through PRISMA the Australian PBR application fee must be paid through eServices.
eServices – To file an Application part 1 you must first download and complete the following fillable pdf forms:
Part 1 General Information (this is the Application part 1 form)
Nomination of Qualified Person
Authorisation of Agent (if you are using an agent)
Supplementary pages (if there is more than one applicant).
Download these forms and fill them in, then go online to submit them, and pay the application fee.
Nomination of Qualified Person
Along with your Application part 1, you have to complete a Nomination of a Qualified Person form. You cannot apply for PBR without nominating an approved Qualified person (QP) to assist with the next steps, including the growing trial and the detailed plant description. Contact details for QPS are in the Qualified Persons Directory.
Examination of your application
The examination process checks the formalities of your application, your eligibility to apply and the details of the plant variety itself. Once the application is 'accepted' you are covered by provisional protection. This usually occurs within two months of filing your application if all eligibility requirements are satisfied.
The next stages towards full PBR protection are the comparative growing trial and Application part 2.
Holders of plant breeder's rights (PBR) protection should indicate that their variety is registered with us on the labels of plants or seeds for sale. This applies to both provisional and full plant breeder’s rights protection.
Only recommended versions of the logo and standardised wording can be used. The PBR logo and wording should be used on both 'tie on' or 'push in' labels.
The PBR symbol can be used after the variety name in catalogues.
Inadequate labelling of plants under provisional protection could reduce the effectiveness of future rights. Under section 57 of the Plant Breeder's Rights Act 1994 (PBR Act) the court may refuse to award damages against a person in an action for infringement of PBR in a plant variety, if the person was not aware of, and had no reasonable grounds for suspecting, the existence of that right.
Labelling for test marketing
Plant material sold for test marketing before the application is lodged should be labelled to show the time frame for the intended application for PBR. The following words should be used:
Eligibility of this plant as a registrable plant variety under Section 43(6) of the Plant Breeder's Rights Act 1994 will expire on <insert date>.
The date nominated must not exceed 12 months from the date of first sale in Australia and not more than four years from the date of first sale overseas. This timeframe extends to six years in the case of overseas sales of tree and grapevine (Vitis vinidera) varieties.
It is an offence under section 75(4) of the PBR Act to represent a non-PBR plant as a PBR protected plant.