Plant breeder's rights (PBR) FAQs
I want to find out more about:
How do I lodge Application part 1?
Application part 1 can be submitted by either of the following means:
PRISMA – the online application tool developed and maintained by the International Union for the Protection of New Varieties of Plants (UPOV) that guides users in submitting their application in Australia.
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 a Qualified Person
- Authorisation of Agent (if you are using an agent)
- Supplementary pages (if there is more than one applicant).
You can download these forms from eServices and fill them in, then login to submit them, and pay the application fee.
Please note: the PBR office does not encourage the submission of hard copy by post.
Who can apply for a PBR?
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 apply for a PBR:
- the original breeder of a new variety (if the breeder is an employee of an organisation then their employer can apply).
- a person or organisation that has acquired ownership rights from the original breeder.
- nominated Qualified Person who is authorised to sign on behalf of the applicant.
Is nomination of a Qualified Person (QP) important?
All applications for PBR must nominate a QP when you submit your Application part 1. A QP is an expert in a plant group, accredited by us to certify applications. QPs oversee the comparative growing trial and help you to provide evidence that your new variety is distinct, uniform, and stable.
Can I submit a PBR application if I’m not the breeder of a new variety?
Yes, if the applicant is not the breeder of a new variety, they can submit the PBR application. However, the applicant must clarify the relationship with the breeder. They must also provide details of the transfer of ownership of the variety from the breeder to the applicant and an assignment of rights may be required.
Is it mandatory to submit a herbarium specimen to the Australian Cultivar Registration Authority (ACRA) for Australian native species?
As part of the assessment of PBR applications for a variety of an Australian native species, the applicant/agent must submit a satisfactory specimen to ACRA. The purpose of this submission is to confirm the taxonomic identification of the variety. ACRA may also suggest additional comparators to be used in the growing trial. Information on how to submit a satisfactory specimen and complete ACRA registration form is available on the ACRA website.
What type of plants can be registered as a PBR?
A registerable variety of any plant type, including algae and fungi, can be protected by PBR. The definition of “plant” under the Plant Breeder’s Rights Act,1994 does not include bacteria, bacteroids, mycoplasmas, viruses, viroids, and bacteriophages. These cannot be registered.
What are the criteria for new variety protection?
New varieties for PBR protection must have a breeder and be distinct, uniform, and stable (DUS). The variety also must not have been exploited or only been exploited recently.
Can a new PBR variety denomination name include a registered trade mark?
No, a variety name or part of the name must not include a trade mark that is registered, or whose registration is being sought, under Class 31 of the Trade Marks Act 1995, in respect of live plants, plant cells and plant tissues.
Can I use a similar variety name to an existing protected variety name in the same denomination class?
No, the variety name is likely to deceive or cause confusion with an existing variety name in the same denomination class. Therefore, the variety name does not meet the requirements of section 27 of the Plant Breeder’s Rights Act 1994 and an alternative name must be proposed.
Can I reuse PBR protected variety farm saved seed?
Section 17 of the Plant Breeder's Rights Act 1994 specifically allows farmers to reuse seed and other propagating material, within certain conditions.
Known as the Farm Saved Seed (FSS) provision, section 17 provides a significant exemption from infringing plant breeder's rights.
However, there are conditions:
- The farmer must legitimately purchase the original PBR protected variety (G0 or generation zero) and pay the royalty. A handshake deal with a neighbouring farmer does not qualify.
- The propagating material derived from step 1 is used for further reproduction. Selling material produced by G0 is acceptable. Using material for cattle feed on a farm is not further reproduction.
- A plant species (or more accurately ‘a taxon’) may be declared in the PBR regulations as exempt from the operation of FSS and must not be used as farm saved seed. Currently, no taxon is declared in the PBR regulations as being exempt from FSS.
Are essentially derived varieties (EDV) eligible for protection?
The Plant Breeder's Rights Act 1994 extends protection of registered varieties to EDVs. EDVs share all the essential characteristics of a registered plant variety but are clearly distinguishable and qualify for PBR registration.
A grantee of an initial registered variety or an exclusive licensee of the grantee can ask IP Australia to declare a second variety as essentially derived. This means the second variety will fall within the scope of the initial variety, meaning more than one person may have rights to the second variety and need to agree to conditions of commercialisation. A declaration that the second variety is essentially derived can be made regardless of whether it is a PBR protected variety or not.
If I seek PBR for parent varieties used in hybrid seed am I required to provide reasonable public access to them within 2 years of the grant?
Section 19 of the Plant Breeder’s Rights Act 1994 sets out the requirement to provide reasonable public access to a PBR variety. However, in the case of parents used in hybrid seed production, it is possible to seek an exemption from this requirement.
How do I pay the PBR application fees?
How much are the PBR application process fees?
For the most up-to-date fee information, please see our time and costs page.
Is my PBR application eligible for a discount in fees?
Your application may be eligible for a discount in fees for distinct, uniform, and stable (DUS) examination if:
- The application is conducted by a Centralised Test Centre (CTC). If this is the case, your discounted fee will be $920.
To be eligible for this discount, the variety must be one of 5 or more varieties of the same genus tested in a CTC at any one time.
- You are applying for multiple applications. If this is the case, your discounted fee will be $1380.
To be eligible for this discount, each of 2 or more varieties must be tested simultaneously at the same site in Australia under section 37 of the Plant Breeder’s Rights Act 1994 to establish that the varieties are DUS. A complete application and detailed description must be lodged on the same day by the same approved person, applicant or agent of the application under section 34 of the Act.
No discount in fees applies for applications based on overseas DUS test data.
Please note: There are no discounts available for variety descriptions based solely on overseas data. However, if a test is conducted in Australia to verify the expression of the characteristics of 2 or more varieties, then the application may be eligible for multiple discount fees.
What is the timeframe for registration of new PBR varieties?
The registration process can take just under a year, or over 10 years, depending on the type of species you have bred. The growing trials take time to complete and are different for different species. Average registration time for wheat varieties is close to 2 years. For rose varieties it is around 2 and a half years, apples average just over 5 years and mangoes can take as long as 10 years.
Am I eligible to claim priority on the earliest overseas application lodged with a UPOV member state?
To be eligible to claim priority, you are required to submit a copy of the first foreign application certified by the relevant authority to be a true copy within 3 months of the date of lodging the Australian application. You are also required to complete the assessment of the application in Australia within 5 years of making the first foreign application.
When should priority be claimed with an International Union for the Protection of New Varieties of Plants (UPOV) member state?
A claim for priority with a UPOV member state can only be made if the Australian application is lodged within 12 months of lodgement of the earliest overseas application.
If a variety is already registered in another UPOV member state and I seek to register in Australia am I obliged to file under the same variety name.
Yes. However, if we determine that the overseas registered name cannot be accepted under section 27 of the Plant Breeder’s Rights Act 1994, a new name must be proposed.