Proposed changes to Plant Breeder’s Rights in the draft Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill and Regulations 2017

Last updated: 
23 November 2017

There are a number of proposed changes to the Plant Breeder’s Rights (PBR) system that protects new plant varieties. This page gives an overview of the main proposals, to help you work out if they are relevant to you. The draft legislation is currently open for comments until 4 December 2017.

 

Essentially derived varieties

What is the change?

Currently, if a plant variety is bred from an earlier PBR-protected variety with only minor changes, the owner of the earlier variety can apply to have the later variety declared an essentially derived variety (EDV).  If the application is successful, both owners have a stake in the second variety. The change seeks to close a loophole where an EDV cannot be declared if no PBR application has been made for the later variety.

This change is in Part 2 of Schedule 1 of the Bill.

Who should be aware?

Anyone who breeds plant varieties commercially.

 

Unjustified threats of infringement

What is the change?

An unjustified threat of infringement would be where a PBR owner threatens to sue someone without justification. The change seeks to deter these threats by making the PBR owner able to be sued for an unjustified threat. Also, if the threat is particularly bad (blatant or flagrant), the victim of the threat can be awarded extra compensation (additional damages).

This change is in Part 8 of Schedule 2 of the Bill.

Who should be aware?

Anyone who uses plant varieties commercially.

 

Further power to award damages under the PBR Act

What is the change?

The change seeks to deter infringement by allowing a PBR owner to be awarded extra compensation (additional damages) where the infringement is considered particularly bad (blatant or flagrant). This is already the case for patents, designs and trade marks.

This change is in Part 11 of Schedule 2 of the Bill.

Who should be aware?

Anyone who uses plant varieties commercially.

 

Exclusive licensees in the PBR Act

What is the change?

A PBR owner may wish to license all of their rights in the PBR to another person (eg a distributor), known as an exclusive licensee. Despite the exclusive licensee having sole rights to commercialise the variety, the exclusive licensee currently cannot sue infringers themselves. Currently the PBR owner needs to sue the infringer, which can add delay and expense for the exclusive licensee. The change seeks to remove this potential delay and expense by allowing the exclusive licensee to sue infringers themselves. This is already the case for patents and trade marks.

This change is in Part 12 of Schedule 2 of the Bill.

Who should be aware?

Anyone who uses plant varieties commercially.

 

Have your say

The draft legislation is currently open for comments until 4 December 2017.