The Plant Breeder's Rights Advisory Council has an assessment framework for requests to extend the duration of protection. This framework outlines the process for objective and consistent assessment.
If granted, these provisions of extension are applied to all plant breeder's rights (PBR) of plant varieties within a specific taxon, and not to an individual PBR. Anyone can apply for an extension of duration of protection on a taxon. A taxon is the taxonomic ranking above the level of a plant variety.
How to apply
A request should include:
- the length of the requested extension and reasons why this length is sought
- whether the application for extension is permanent or is for a defined period
- the taxon for which the extension to the duration of PBR protection is sought and reasons why this taxon was chosen
- the reasons why an extension is being requested including
- a description of the problem the extension is intended to address or overcome, and evidence to support that there is a problem
- what other steps the requestor has taken to overcome or address the problem
- an explanation of why Government action to extend the duration of PBR protection for that taxon is justified
- an explanation of how the extension will address the problem.
The decision of a request is made on a case by case basis and is open for interested parties to comment.
- Once we receive a request we will consider it against the assessment framework and give the requestor a chance to provide additional information if needed.
- The Minister will notify the requestor if a case for action has not been made and our assessment of the request will end.
- If a case for action has been made by the requestor, the Minister will authorise public consultation on the case for extension and release a discussion paper inviting submissions from interested parties.
- After submissions close, we will conduct an analysis and provide a report to the Minister.
- The Minister will then make a decision on whether regulations will be made under subsection 22(3) of the Plant Breeder's Rights Act 1994.
- If the Minister decides not to make regulations, the assessment of the request will end.
- If the Minister forms an intention to make regulations, a further consultation process will commence and all submissions will be considered prior to the Minister's final decision.
When assessing a request for extension, a number of issues will be taken into account and an impact analysis will be undertaken. These will affect whether an extension will or will not be considered.
Relevant issues include:
- the cause of the factor limiting exploitation and if this is self-inflicted
- will extending the duration effectively address the problems
- are there any other alternative mechanisms in place
- is the breeder able to take effective steps to mitigate against the effects of the interfering factors and have they done so
- how many people are affected by the perceived problem
- the perceived consequences if an extension to the duration of protection is not granted
- the breadth of the taxonomic category for which the extension is sought
- crop rotation length
- typical (industry average) period to commercial adoption, for the taxon
- multiplication time
- time for a taxon to become biologically and commercially productive
- anticipated commercial life of that taxon.
In considering an application for extension, the Minister may decide:
- not to extend the duration of PBR protection for the nominated taxon
- to adopt alternate Government action
- to extend the duration of PBR protection as requested by the applicant
- to extend the duration of PBR for a period considered appropriate by the Minister
- to apply the extension to existing and/or future rights within the taxon.
- to apply the extension indefinitely or only for a limited period of time
- to determine whether the extension is subject to a future review and, if so, when.