4.5 Prior Sales

Also in this Chapter:

• 4.1 Scope and Nature of Plant Breeder's Rights
• 4.2 Roles in a PBR Application
• 4.3 Form an application must take
• 4.4 Variety Denomination
• 4.6 Priority
• 4.7 Acceptance or Rejection of PBR Application
• 4.8 Provisional Protection

Key Legislation 

Plant Breeder’s Rights Act 1994:

• s43 Registrable plant varieties 

On this Page

• Overview 

• “Recently exploited”

  • If sold in Australia

  • If sold outside of Australia

• Exceptions

• Records of prior sales 

Overview 

The requirements for a plant variety to be registrable for PBR are defined in s43 of the Plant Breeder’s Rights Act 1994. These requirements include limitations on the previous commercial exploitation of the variety. In particular, s43(1)(e) requires that the variety has not been exploited or has only been recently exploited.  

“Recently exploited” 

The definition of “recently exploited” is set forth in s43(6) of the Act. A variety is considered to only have been recently exploited if, at the date of lodging an application for PBR in the variety, plant material of that variety has not been sold to another party by, or with the consent of, the breeder within the time periods prescribed below.  

If sold in Australia 

Plant material of the variety cannot have been sold in Australia more than 1 year before the date of lodging an application for PBR in the variety.  

If sold outside of Australia 

Plant material of the variety cannot have been sold anywhere outside of Australia more than: 

• 6 years if the variety is a tree or vine; or 

• 4 years in any other case 

before the date of lodging an application for PBR in the variety.  

Exceptions 

Circumstances where s43(6) of the Act does not apply to a sale of the plant variety are set forth in s43(7A)-s43(7C). These include: 

• If the sole purpose of the sale is to multiply the plant material on behalf of the breeder, and under the agreement of the sale, immediately after the plant material has multiplied, property of the new (multiplied) plant material is vested in the breeder; 

• If the sale is part of an agreement where the person agrees to use the plant material for the sole purpose of evaluating the variety via a field test, laboratory trial, small-scale processing trial or other prescribed test or trial; or 

• If the sale only involves plant material that is a by-product or surplus product of creating, multiplying or using the plant variety for testing as defined in s43(7B), and the plant material is sold without identification of the plant variety and for the sole purpose of final consumption.  

Records of Prior Sales 

Applicants must record any details of prior sales both within and outside of Australia in the Part 1 Application Form. This should include the date of the prior sale, the variety name the plant material was sold under and the country in which the sale took place.