4.1 Scope and Nature of Plant Breeder's Rights

Date Published

Key Legislation

Plant Breeder's Rights Act 1994:

  • s12 Extension of PBR to cover essentially derived varieties 

  • s13 Extension of PBR to cover certain dependent plant varieties 

  • s14 Extension of PBR to harvested material in certain circumstances 

  • s15 Extension of PBR to products obtained from harvested material in certain circumstances 

  • s16 Certain acts done for private, experimental or breeding purposes do not infringe PBR 

  • s17 Conditioning and use of farm saved seed does not infringe PBR  

  • s18 Restrictions on exercise of PBR in certain circumstances  

  • s19 Reasonable public access to plant varieties covered by PBR 

  • s22 Duration of PBR 

  • s23 Exhaustion of PBR 

Related Chapters:

Introduction

Plant Breeder's Rights are exclusive commercial rights to a registered variety. The rights are a form of intellectual property, similar to patents and copyright, and are administered under the Plant Breeder's Rights Act 1994 (the Act). The rights are applied for using application forms available from the IP Australia website.

In relation to propagating material of the registered variety, successful applicants have exclusive rights to:

a) produce or reproduce the material;

b) condition the material for the purpose of propagation (conditioning includes cleaning, coating, sorting, packaging and grading);

c) offer the material for sale;

d) sell the material;

e) import the material;

f) export the material; and

g) stock the material for any of the purposes described in (a) to (f).

The initial application (Part 1) provides details of the applicant, origin of the variety and a prima facie case for eligibility. The information provided in the Part 1 application supports the examiner’s decision to accept or reject the application for PBR.   

Following acceptance of an application for PBR, provisional protection (see 4.8 Provisional Protection) is conferred to the variety until its grant or refusal, with full protection conferred on the date the PBR is granted.  

Further information regarding the life cycle of PBR from lodgement of an application until after grant of PBR is presented in 3.1 PBR Process Overview.   

Protection in Australia 

An application for PBR under the Plant Breeders Rights Act 1994 only provides protection with respect to the candidate variety in Australia.  

If applicants wish to seek protection in additional jurisdictions, PBR must be applied for in each jurisdiction in which protection is being sought. PBR may also be referred to in some jurisdictions as plant variety protection (PVP).  

The Union for the Protection of New Varieties of Plants (UPOV) has developed an online tool PRISMA to assist in making PVP applications to offices of participating UPOV members. The PRISMA tool page contains further information on how applicants can use the tool and which jurisdictions are covered.  

What PBR protection extends to 

As well as the exclusive rights noted above, PBR for a variety will extend to: 

  • Essentially derived varieties (s12; also see 7. Essentially Derived Varieties (EDVs)); 

  • Certain dependent varieties (s13); 

  • Harvested material in certain circumstances (s14); and 

  • Products obtained from harvested material in certain circumstances (s15).  

Exceptions to PBR 

There are exceptions to the exclusive rights conferred by a PBR. These include: 

  • Acts done for private, experimental or breeding purposes (s16); and 

  • The conditioning and use of farm saved seed (s17).  

Duration of protection and limits of PBR 

PBR in a plant variety begins on the day that PBR is granted and lasts for 25 years in the case of trees and vines and 20 years in the case of all other plant varieties (s22).  

Beyond limits to the duration of PBR protection as defined in s22, additional limits to the exclusive rights conferred by the grant of PBR include: 

  • Restrictions on the exercise of PBR in certain circumstances (s18); 

  • Reasonable public access to PBR (s19); and 

  • Exhaustion of PBR (s23). 

Amended Reasons

Amended Reason Date Amended

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