Plant breeder's rights (PBR) are exclusive commercial rights for a registered variety of plant. The rights are a form of intellectual property (IP), like patents, trade marks and designs. If you develop a new plant variety, you may want to protect your IP with plant breeder’s rights.
The plant breeder's rights (PBR) scheme protects plant breeders and gives them a commercial monopoly for a period of time. This encourages plant breeding and innovation, and means that a large and growing pool of new plant varieties is freely available to anybody when the protection periods lapse.
What can be registered?
Only eligible new or recently exploited varieties can be registered.
New varieties
New varieties of all plant species are potentially registrable. A new variety is one that has not been sold with the breeder's consent beyond the allowable time period.
Recently exploited varieties
Recently exploited varieties of all plant species are potentially registrable. A recently exploited variety is a plant that has not been sold with the breeder's consent beyond 12 months before application in Australia. For overseas varieties, this plant should not have been sold for more than four years (six years for trees and grape vines).
Essentially derived varieties
PBR can also extend to essentially derived varieties. These varieties are derived from the protected variety, retaining essential features and do not exhibit any important features that differentiate it from the protected variety.
Dependent varieties
PBR protection can extend beyond the new variety to certain other varieties. For example, PBR can extend to varieties that can only be reproduced by the repeated use of the PBR protected variety (dependent varieties).
Further breeding
It is in the public interest, and the aim of the PBR Act, that plant innovation is encouraged. Therefore further breeding based on PBR varieties is allowable under the PBR Act.
Harvested material
In certain circumstances PBR also extends to harvested material and, subject to a similar set of qualifications, to products obtained from harvested material. An example is if a breeder has not had a reasonable opportunity to exercise their right on the propagating material and that material is further reproduced.
Search existing plant varieties
For more information about registered plant varieties, you can search all currently registered varieties on the Plant Breeder's Rights Database.
Choosing not to apply for PBR
You may decide that PBRs are not the best option for you - you could decide to keep your new plant variety secret or make it public.
Keep it secret
If you prefer to keep your plant variety secret, you would have to assess the risk and consequences of someone obtaining your variety without your permission or, as has happened, independently breeding a very similar (indistinguishable) variety.
Make it public
Another alternative is to openly use and publish details about your variety. This will prevent someone else obtaining a PBR or a patent for the same thing, but could also allow your competitors to freely use your variety for their own benefit.
Get professional advice
For specific assistance and advice you can contact a qualified person (QP).
PBR history
The plant breeder’s rights scheme was first established under the Plant Variety Rights Act 1987 and administered by the Department of Agriculture, Fisheries and Forestry.
Australia’s PBR legislation is aligned with international protection of new plant varieties. To conform with changes in the International Convention for the Protection of New Varieties of Plants (the UPOV Convention), the Plant Breeder's Rights Act 1994 was legislated in 1994. IP Australia began administering the PBR scheme in 2004.
Intentional infringement of a PBR attracts a penalty of $85 000 for individuals. The penalty for corporations is up to five times greater.
Protection
PBR protection applies for 20 years for most plant species and 25 years for vines (Actinidia (Kiwifruit), Bougainvillea, Campsis, Hedera and Vitis (grapevine)) and trees.
PBR gives you exclusive rights to:
- produce or reproduce the plant material
- condition the plant material for the purpose of propagation (conditioning includes cleaning, coating, sorting, packaging and grading)
- offer the plant material for sale
- sell the plant material
- import and export the plant material
- stock the plant material for any of the purposes described above.
The exceptions to PBR are the use of the variety:
- privately and for non-commercial purposes
- for experimental purposes
- for breeding other plant varieties.
Some specifics covered in the PBR Act include:
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prior sale limitation
- Sale in Australia, with the breeder's consent, is permitted for up to one year prior to applying for PBR.
- Sale overseas, with the breeder's consent, is permitted in tree and grapevine (Vitis vinifera) varieties for up to six years and in all other varieties for up to four years prior to applying for PBR.
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timing of fee payment
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protection of the registered name and synonym of the variety
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essentially derived varieties (EDV)
- A grantee is able to apply for a declaration that another variety is essentially derived from their PBR protected variety and so extend their protection to that other variety.
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farm-saved seed
- Farm-saved seed is allowed, unless regulations declare that farm-saved seed does not apply to that particular crop.
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harvested material or products made from the harvested material
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exemptions for further breeding, experimental use and private non-commercial purposes
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protection of transgenic plants, algae and fungi.
Other legislation
Other Australian legislation could impact on intended uses of a registered variety. It is feasible that the commercialisation of a new plant variety registered under the PBR Act could be restricted by other legislation.
Plant quarantine and plant biosecurity issues play a role in such matters. For example, current legislation may prohibit the use of that variety in food or the growing of that variety because it is a noxious weed or because of public health issues.
Such matters are outside the scope of the PBR Act and it is the responsibility of the applicant to take them into consideration and to act appropriately.
Commercial gain
You have the opportunity to commercialise your variety yourself, or through a contractual arrangement such as licensing with a chosen person or organisation. For the protection period of your plant breeder’s rights, you are the only one who can do this.
Companies can enter into licensing contracts knowing that their investment will be protected by PBR. As an example, the Australian Wheat Board has implemented the end point royalty scheme to collect royalties directly from the growers under their licensing arrangements.
Since the establishment of PBR in Australia, many organisations confirm protection of their new plant varieties before they start commercialisation.
PBR ownership
Plant breeder’s rights are personal property and can be assigned, sold and transferred to other parties.
Recording a mortgage
If you want to record the details of a mortgage that has been taken out on your PBR (or that you have taken out on another person's PBR), you need to record this on the national online Personal Property Securities Register. Security interests such as mortgages cannot be recorded on the Plant Breeder's Rights Register.
Centre for research and training
Funding bodies have been established to channel royalties obtained from PBR into further research and breeding. The Australian Centre for Intellectual Property in Agriculture (ACIPA) has been established to conduct research and training in intellectual property (IP) rights. This is funded by the Grains Research and Development Corporation (GRDC).