You can register a new plant variety overseas or import a variety from overseas and register it in Australia.
Registering your plant variety overseas
You need to apply for plant breeder’s rights separately, in each foreign country, in the same way you have to in Australia.
You can use a single application for:
- the European Union (EU) - this provides potential plant breeder’s rights protection in all EU countries
- all African countries that are affiliated under the African Intellectual Property Organization (OAPI).
We aren’t a part of the overseas application process, so we can’t help with plant breeder’s rights applications to foreign countries. We aren’t able to provide application forms, or receive applications or fees for offices in other countries. However, if the foreign country is a participating member in the UPOV online application form tool (PRISMA) then it may be possible for you to file your application using PRISMA.
Registering in UPOV countries
Australia belongs to the International Union for the Protection of New Varieties of Plants (UPOV). There are over 70 member countries, including all major industrial countries and Australia's key trading partners.
UPOV members treat Australian applicants in the same way as their own nationals. No special rules can be applied, although you may need an agent within some countries. Usually you can use your Australian application as the basis for an application in another member country. In particular, the online application tool, PRISMA, can be useful if the other member country is also a participating member as matching information from a previous application can be reused.
PBR registration systems are similar in each of the member countries. Some differences exist in the scope of protection and the administration of applications. Not every UPOV member country protects every species.
UPOV members offer a longer time frame for commercialising the variety before an application is lodged. Member countries allow the variety to have been sold for up to four years outside the jurisdiction - or six years for trees and vines. This is not the case for asexually propagated plants in the USA.
Registering overseas – country differences
Plant breeder’s rights may be called plant variety rights or plant variety protection - these are effectively the same.
In some countries you have to use the services of a local agent if you are not a resident of that country.
In some countries you may be required to provide an address in that country for service of documents. It may be possible to arrange for a friend or business contact to forward correspondence to you in Australia.
If English is not an official language used by the receiving office of the country, you will need to supply a translation of the basic documentation in an official language used by that office. For UPOV applications, the use of their standard forms, where applicable, can avoid much of the translation expense.
The fees for obtaining and maintaining plant breeder’s rights vary from country to country.
Using your Australian priority date
If you make an application in a foreign country within 12 months of your Australian application, you may be able to claim the date on which you lodged your Australian application as the priority date of your application. To do this you will need to provide a copy of the Australian application. Certified copies can be obtained if you contact us and pay a fee.
Registering a new variety from overseas
To register plant breeder’s rights for plant varieties developed overseas, you follow the same application process as for a new variety developed in Australia. This usually includes the comparative growing trial.
The Plant Breeder's Rights Act 1994 (PBR Act) allows distinctness, uniformity and stability (DUS) data produced in other UPOV countries to be used in lieu of a local comparative growing trial, provided certain conditions are met. Conditions relate to the filing of applications, sufficiency of the data and the likelihood that your variety will express the distinctive characteristics in the same way had it been grown in Australia.
The use of overseas data could be considered where:
- the first PBR application relating to the candidate variety has been lodged overseas
- the variety has previously been test-grown in a UPOV member country using official UPOV test guidelines and test procedures (testing that is equivalent to a comparative trial in Australia)
- all the most similar varieties of common knowledge (including those in Australia) have been included in the overseas DUS trial
- the new overseas variety is so clearly distinct from all the Australian varieties of common knowledge that further DUS test growing is not warranted
- sufficient data and descriptive information is available to publish a detailed description of the variety in the accepted format in the Plant Varieties Journal and to satisfy the requirements of the PBR Act.
If the requirements for the use of overseas data are satisfied, your nominated qualified person (QP) can prepare and submit the detailed description and Application part 2 documents in the normal way. This includes distinguishing the variety from the most similar varieties of common knowledge.
Some applicants choose to combine the use of overseas data and a limited growing trial in Australia (a verification trial). These verification trials remove any doubt that distinctive features of the variety are expressed as described in the overseas data. Verification trials may not always include comparators, although depending on the method used to assess uniformity, including the most similar varieties of common knowledge, may be useful.
Exceptions for overseas data
We do not accept overseas data for some species due to wide genotype and environment interactions. Varietal descriptions from overseas trials have been consistently different from those obtained in trials grown under Australian conditions.
A full comparative growing trial must be conducted in Australia for some species. Currently this applies to the potato (Solanum tuberosum).
For specific assistance and advice you can contact a qualified person (QP).