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.
Essentially derived varieties
The Plant Breeder's Rights Act 1994 (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 distinguishable and qualify for PBR registration in their own right.
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 whether or not PBR has been granted (or applied for) in the second variety.
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.
Section 17 of the PBR Act provides a significant exemption from infringing PBR, by allowing farmers to reuse seed and other propagating material under certain conditions. This is known as the farm saved seed (FSS) provision.
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 PBR Act:
“This section does not apply in relation to a plant variety in respect of which the Registrar 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. Under such cases, it may be possible to obtain an exemption from reasonable public access. Any application for this exemption must be made before PBR is granted in that variety.
Regulations can be made under subsection 22(3) of the PBR Act to extend the duration of protection of PBR in a plant variety in a specified taxon.
If you wish to obtain further information about the circumstances in which such regulations might be made, please contact us via PBR@ipaustralia.gov.au.
Plant Breeder’s Rights Consultation Group
The Plant Breeder’s Rights Consultation Group (PBRCG) is a principal forum for consultation, discussion and information exchange on issues relating to the Australian Plant Breeder’s Rights system. It replaces the Plant Breeder’s Rights Advisory Committee (PBRAC).