Chapter 5 Plant breeder's rights

IP report 2022 chapter5

PBRs provide plant breeders with a form of legal protection for new varieties of plants, up to a maximum term of 25 years. A plant variety must be clearly identified, distinguishable from other varieties, uniform and stable upon propagation to be eligible for protection.

PBRs are designed to encourage private investment in the breeding of new plant varieties, and to encourage international transfer of new varieties into Australia. A PBR gives its owner exclusive rights to exclude others from commercially using or selling a variety. This provides the opportunity for the right holder to collect royalties while directing the production, sale and distribution of varieties.

PBR applications and registrations

In 2021, 297 PBR applications were filed at IP Australia, down 6% on 2020. Following a relatively stable growth trend between 2012 and 2016, annual filings have been on a declining trend over recent years (see Figure PB1).

Figure PB1: In 2021, PBR applications fell 6% from their 2020 level

Non-residents remain the dominant source for PBR filings in Australia, with 58% of total filings, a position maintained for most of the past decade. Applications by non-residents fell 9% in 2021 (from 191 in 2020 to 173) and non-residents accounted for 94% of the decline in total applications. Applications by Australian residents fell 1% from 2020 (to 124), though the difference was just one application.

PBR applications can be filed by single parties or by multiple parties. In practice, no PBR applications are filed by Australians in partnership with international co-applicants. In the case of PBRs, multi-party applications are produced by Australian co-applicants. As Figure PB2 shows, the share of resident applications involving multiple parties has significantly declined over the past decade, from one in every six in 2012 to one in every 41 in 2021.

Figure PB2: The proportion of PBR applications filed by multiple parties has declined markedly over the past decade

A PBR application must pass a substantive examination process and a comparative growing trial to be registered.1 PBR registrations fell 45% in 2021, to 116. A variety of factors likely caused the decline. The drop in registration numbers likely reflects constraints on examination, including travel restrictions during COVID-19 which affected the ability of examiners and plant group experts to attend growing trials. In addition, Australia’s devastating bushfires in 2019–20 caused economic losses equivalent to 6–8% of Australia’s national agricultural output, including loss of crops, impacting breeders and downstream users.2

In 2021, a notable decline in PBR registrations was observed for both Australian and non-resident applicants. Australian residents registered 50 PBRs, down 52% on 2020, and these accounted for 43% of all registrations. Registrations by non-residents fell 38%, from 107 to 66.

Countries of origin

The Netherlands and the US retain their status as the two major foreign countries of origin for PBR filings in Australia.3 In 2021, the Netherlands surpassed the US as the leading source for the first time, with 49 total applications. Filings from the US fell 34%, from 62 in 2020 to 41 in 2021. Applications from the Netherlands also fell but at a lesser rate than the US (−9%, from 54 to 49).

Figure PB3: Number and growth of PBR applications by country of origin

Plant varieties

Ornamental plants and fruit crops have been the two major PBR varieties attracting the most applications in Australia (see Figure PB4). Fruit crops became the strongest performing plant group in 2021, with 96 applications, or 32% of applications. Fruit crop applications have shown an overall increasing trend since 2012, reaching a peak of 148 in 2018 before sharply dropping to 57 in 2019. Fruit crop filings have rebounded to their 10-year average in the years since.

Applications for ornamental varieties have steadily declined since 2013 and fell 22% in 2021, from 101 in 2020 to 79 (see Figure PB4). The decline in applications for Ornamentals has been steady since 2001, when a peak of 259 applications was recorded. As a share of total applications, Ornamentals have fallen from 50% in 2013 to 27% in 2021.

Figure PB4: Number of PBR applications for varieties of Ornamental and Fruit crop varieties, 2012–21

Leading applicants

Table PB1 lists the leading resident and non-resident applicants for PBR applications in Australia. Among domestic applicants, Botanic Gardens and Parks Authority (WA), OZ Pash Pty Ltd and Nuflora International Pty Ltd all filed 8 applications in 2021. NuFlora was formed as a cooperative enterprise by the University of Sydney through its Plant Breeding Institute (38% ownership). Costa Berry filed 7 applications, followed by Australian Grain Technologies, with 6.

Table PB1. Top domestic and international applicants for PBRs in Australia, 2021

Top domestic applicants  
Rank Applicant Total applications
1 Botanic Gardens and Parks Authority (WA) 8
1 OZ Pash Pty Ltd 8
1 NuFlora International Pty Ltd 8
2 Costa Berry International Pty Ltd 7
3 Australian Grain Technologies Pty Ltd 6
4 Sugar Research Australia 5
4 The University of Sydney 5
4 Hidden Valley Plantations 5
5 Terence Charles Keogh 4
5 State of Queensland Horticulture Innovation Australia Limited 4
 Top international applicants
Rank Applicant  Total applications
1 Nunhems B.V. 13
2 Syngenta Crop Protection Agency 11
3 International Fruit Genetics 8
4 Rijk Zwaan Zaadteelt en Zaadhandel B.V. 7
5 David Austin Roses Limited 6
5 J Frank Schmidt and Son Co. 6

 

Nunhems was the top PBR filer among international applicants in Australia with 13 applications. Nunhems is a multinational company headquartered in the Netherlands that provides a wholesale supply of vegetable seeds and crops. Syngenta, a global provider of agricultural science and technology with its headquarters in Switzerland, ranked 2nd with 11 applications. International Fruit Genetics, a US-based fruit breeding company, was 3rd with 8.

The top filer in 2020 was Rijk Zwaan, a vegetable breeding company based in the Netherlands. Filings from this company dropped from 19 in 2020 to 7 in 2021, placing it 4th in the rankings. Austin Roses, a British company that breeds English roses, and J Frank Schmidt and Son Co., a US wholesale nursery, each filed 6 applications.

The economic contribution of PBR users in Australia

New plant varieties make a crucial contribution to output and productivity growth in Australian agriculture, including horticulture and nurseries. The Australian Government has committed to supporting the agricultural industry to reach its Ag2030 goal of $100 billion in production by 2030. IP Australia has set up a dedicated program to explore Australia’s plant breeding ecosystem and the role of PBR. We are researching the current landscape, challenges and opportunities associated with PBR. From this, we will make recommendations for future improvements.

We have partnered with the Centre for Transformative Innovation (CTI) at Swinburne University of Technology to investigate the economic context for the PBR system including the industries for which it has direct or downstream impacts and the economic contribution of PBR users. This is the first step toward understanding the economic impacts of registering new plant varieties.

To enable this research, the CTI team connected data about PBR applications with information about the filing firms from the ABS Business Longitudinal Analysis Data Environment (BLADE).

Early findings from the CTI study suggests that the annual number of PBR applications filed in Australia increased rapidly after plant variety protections were first introduced in 1987, reached their peak in 1999, and then experienced volatile change afterwards with an overall declining trend.

Cultivars used in Australian agriculture often reflect the result of local breeding efforts to improve or build on germplasm sourced from abroad (e.g., from international breeding organisations, public research institutes or multinational firms). PBR creates an incentive to invest in domestically bred cultivars and encourages private firms’ international transfer of varieties and germplasm. Since the PBR system was first introduced in 1987, approximately 55% of all applications have come from foreign applicants, among which the US and the Netherlands are the major source countries.

The aggregate economic activity attributable to Australian PBR applicants was estimated by identifying all companies with an Australian Business Number (ABN) that have applied for at least one PBR. This data has important caveats that mean aggregates should be treated with caution.4 With these caveats in mind, the aggregates across all firms for which data are available are presented in Table PB2 below. These firms have a total annual turnover of $12.8 billion (average over all years) and employ 78,000 full-time workers.

Table PB2. Key metrics of economic activity for PBR applicants

  Number of firms with data  Average Aggregate
PBR Applications  235 5 1,085
R&D Investment ($1,000s) 25 2,054 51,350
Turnover ($m) 160 80 12,816
Annual Capital Investment ($m) 160 10 1,578
Total Assets ($m) 235 3 742
Employment (FTE) 112 699 78,316

Source: BLADE. Notes: Averages are across all years reported and across firms. All units in real 2020 dollars (price index from ABS 6427.0 division A). Firms with enforceable PBR for which economic aggregates are taken are fewer than 265 reflecting firm entry and exit to BLADE as well as PBR non-renewals.

The economic impact of the PBR system comprises both the value captured by PBR holders themselves and the value that their new cultivars generate when used in downstream sectors. Further research by the project team will map PBR filings against the value of different classes commodities that benefit from creating PBR-protected varieties.

Throughout 2022, IP Australia’s PBR Reform Program will publish further research and data, including findings from interviews with over 70 stakeholders, most directly involved in breeding new plant varieties or bringing new varieties into Australia. To keep updated, visit the program online or contact the program team.

  1. As most applications take more than 12 months to register, the number of PBR registrations in a year is not strongly correlated with the number of applications that year.
  2. Bishop J, T Bell, C Huang & M Ward (2021), Fire on the farm: Assessing the impacts of the 2019–2020 bushfires on food and agriculture in Australia. WWF Australia.
  3. We count an application as originating from a country if at least one applicant on the application is a resident of that country, as indicated by the applicant’s address.
  4. Most importantly, only 213 PBR-owning ABNs have been linked to accounting data. This compares to the 439 organisations identified. The 213 ABNs account for a total of 1,409 PBR applications (as of 2018). This accounts for only 48% of the 2,915 applications by Australian organisations up until 2018. It should also be recognised that form many firms that register PBR, much of their economic activity is not directly related to the breeding and distribution of new plant varieties. For example, well-known biscuit manufacturer Arnott’s has applied for PBR.