Once you have a plant breeder’s right (PBR), you have exclusive commercial rights for a registered variety of plant. Your protection even extends in part to plants that others derive from your plant variety. These are known as essentially derived varieties.
There are also exemptions from infringing PBR. The Plant Breeder's Rights Act 1994 (PBR Act) specifically allows farmers to reuse seed and other propagating material under certain conditions. This is known as the farm saved seed (FSS) provision.
Technical issues concerning PBRand extensions of PBR are managed by the Plant Breeder’s Rights Advisory Committee.
Essentially derived varieties
The PBR Act extends protection of registered varieties to essentially derived varieties (EDV). Essentially derived varieties share all the essential characteristics of a registered plant variety but are clearly distinct and qualify for PBR registration in their own right.
The owner of the initial registered variety can ask us to declare the variety as essentially derived, meaning it will fall within the scope of the initial variety. This means two people may have rights to the second variety and need to agree to conditions of commercialisation.
Farm Saved Seed
Saving seed to plant for the next season is something people have been doing for thousands of years and is essential to our survival.
Known as the farm saved seed (FSS) provision, section 17 of the PBR Act provides a significant exemption from infringing PBR.
Plant Breeder’s Rights Advisory Committee
The Plant Breeder's Rights Advisory Committee (PBRAC) is a statutory body established under the PBR Act to advise the Minister and the Registrar on technical issues.
In the near future the PBRAC will be replaced with a non-statutory consultative group, supported by IP Australia.
Extending your PBR
It is possible to apply for an extension of duration for PBR.
If granted, the extension is applied to all plant varieties within a specific taxon, and not to an individual PBR. Anyone can apply for an extension of protection on a taxon.
The PBRAC has an assessment framework for requests to extend the duration of protection.
Exemption from reasonable public access
It is a PBR requirement that the grantee ensures reasonable public access to their plant variety within two years of grant. The only exemption to this requirement is stated in subsection 19(11) of the Plant Breeder’s Rights Act, 1994 (the Act):
“This section does not apply in relation to a plant variety in respect of which the Secretary certifies, in writing, at the time of the grant of PBR, that he or she is satisfied that plants of that variety have no direct use as a consumer product.
Currently, the only recognised situation where a plant variety may have no direct use as a consumer product is in cases where a parent variety is required for the continuing reproduction of a hybrid variety.