Plant Breeder's Rights - in detail
Plant breeders’ rights (PBR) are more limited than patents , as third parties can use protected varieties to breed or obtain new, sufficiently different varieties.
A plant includes all fungi and algae - but not bacteria, bacteroids, mycoplasmas, viruses, viroids and bacteriophages.
A plant variety is a plant grouping (including a hybrid) that can be:
- Contained in a single botanical taxon of the lowest known rank
- Defined by expressing characteristics resulting from the genotype of each individual in that grouping
- Distinguished from any other grouping by at least one characteristic
- Considered a functional unit because of its suitability for being propagated unchanged
Breeding, in relation to a new variety, includes a reference to the discovery of a plant together with its use in selective propagation, enabling a new variety to be developed.
If you discover a plant, but it’s used in selective propagation someone else to develop a new variety, both of you are considered the new variety’s joint breeders.
A genetically modified organism may be considered a grouping within a single botanical taxon, even though the genome of plants in that grouping has been altered by non-plant genetic material.
Duration of PBR
In tree and vine varieties, PBR continues for 25 years from date of grant, while PBR continues for 20 years from the date of grant for all other varieties.
Other Rights and Provisions
Sale in Australia with the breeder's consent is allowed for up to a year before applying for PBR.
Sale overseas with the breeder's consent is allowed in tree and vine varieties for up to six years, and in all other varieties for up to four years before applying for PBR.
Farm-saved seed will continue to be allowed, unless regulations declare the crop one to which farm-saved seed does not apply.
Transgenic plants, algae and fungi can also be protected.
Intentional infringement of a PBR attracts a penalty of $A55,000 for individuals and up to $A275,000 for corporations.
The Commonwealth Patents Act, 1990 contains further details on PBR.
Steps in Applying for PBR
You can lodge an application in two sections.
Part 1 provides your details, details on the origin of the variety and a prima facie case for eligibility. Time limits apply if the variety is already commercialised in Australia or overseas. If a Part 1 application is not received before the eligible prior-sales period expires, the variety can’t be protected.
Part 2 provides evidence supporting claims made in Part 1, and provides a detailed description of the variety. A qualified person, accredited for the species, must conduct or supervise comparative growing trials to demonstrate the variety’s distinctness, uniformity and stability. Part 2 should also include details of differences from other, similar varieties.
You must deposit propagating material in a Genetic Resources Centre and dispatch an herbarium specimen sample as soon as possible if the variety is an Australian species.
The Institute of Patent and Trade Mark Attorneys of Australia (IPTA) is the peak professional body representing Australian patent and trade mark attorneys.
Phone Australia: 03 9819 2004. Email: mail@ipta.org.au
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