Managing your plant breeder's rights (PBR) involves:
paying your annual registration
correctly labelling your plant variety
commercially exploiting your plant variety (if you wish)
excluding other people from specified acts in relation to your plant variety.
Before full rights are granted
Once your Application part 1 is accepted, your plant variety is covered by provisional protection against infringement. For more information about this stage, see the application process.
Your rights under the PBR Act
You have a number of rights under the Plant Breeder's Rights Act 1994 (PBR Act).
You have the opportunity to commercialise your plant variety either through a contractual arrangement with a person or organisation (licensing) or by selling it yourself.
In addition to protecting your right to commercialise your plant variety, PBR also protects the registered name and synonym of your variety from use in relation to other similar plants.
Retaining your PBR
To retain your PBR, you must pay the annual registration renewal fee for the rest of the protection period.
Your right is to exclude others from certain specified acts in relation to the propagating material of a variety. This includes production, reproduction, conditioning, sale, import, exports and stocking of the material.
Selling your rights
A PBR is personal property and can be assigned, sold and transferred to another party. It is even possible to sell the right to apply for a PBR.
Plant varieties to which plant breeder’s rights apply should be labelled to indicate that they are registered with us.
Infringement of your PBR
As the owner of the PBR, you can seek an injunction, damages or an account of profits for infringement of your rights through civil action.
The owner is the only person who can initiate a civil action for infringement of a PBR.
Penalties for infringement
The PBR Act allows for both civil and criminal proceedings for infringement.
The PBR owner (the grantee) may initiate civil action seeking an injunction, damages or an account of profits. Section 74 of the PBR Act allows up to 500 penalty units for infringement for individuals. The amount of a penalty unit is prescribed in the Crimes Act 1914. The courts may also award additional damages if it is considered appropriate.
Misrepresentation of PBR
The misrepresentation of PBR includes:
- claiming a variety to be PBR protected when in fact it is not
- claiming a variety is not PBR protected when it is
- providing false information in relation to an application.
Penalties for misrepresentation
Misrepresentation can attract fines of 60 penalty units for each offence. Providing false statements in relation to an application can attract six months imprisonment. Section 75 of the PBR Act covers misrepresentation.
The Commonwealth Director of Public Prosecutions may take criminal action against offences, but only in exceptional circumstances where evidence is conclusive and public interest is strong.