4.6 Priority

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
• 4.5 Prior Sales
• 4.7 Acceptance or Rejection of PBR Application
• 4.8 Provisional Protection

Key Legislation

Plant Breeder’s Rights Act 1994:

• s3 Definitions 

• s28 Applications to be given priority dates 

• s29 Priority dates arising from foreign application

• s30 Acceptance or rejection of applications

On this Page

• Overview

• Where section 29 of the Act is applicable 

• Two or more applications lodged for the same variety 

Overview 

As set forth in s28 of the Plant Breeder’s Rights Act 1994, the Registrar must ensure that each application for PBR is given a priority date. Correct identification of the priority date is vital for many matters affecting the applicant, such as cases of infringement.  

In most cases, the priority date is the date the application for PBR is lodged with the Registrar.  

However, the applicant may be entitled to an earlier priority date if s29 of the Plant Breeder’s Rights Act 1994 is relevant to the application.   

Where section 29 of the Act is applicable 

Where assessing the priority date for an application, s29 may be applicable if the applicant has filed an application for PBR outside of Australia.  

Under s29, applicants are entitled to have the date of lodgement of the application filed outside of Australia treated as the priority date for their Australian application for PBR if: 

1. the applicant has lodged an application for PBR in a plant variety in one or more contracting parties (as defined in s3 – in most cases this will be a fellow UPOV member country) other than Australia; and 

2. within a period of 12 months after the date that the earliest of those applications (the foreign application) was lodged, the person lodges an application in Australia (the local application) for PBR in the variety; and 

3. the local application is accompanied with a claim to have the date of lodgement of the foreign application treated as the priority date for the purposes of the local application; and

4.  the local application is accepted.  

To be entitled to the earlier priority date as defined above, the applicant must also: 

• Lodge a copy of the documents constituting the foreign application with the Registrar within 3 months of the date of lodging their Australian application with the Registrar – this copy must be certified by the Authority receiving the foreign application as a true copy of the original documents; and 

• Provide further particulars necessary for the Registrar to complete consideration of the Australian application within 5 years of the date of making the foreign application.   

Applicants should also indicate in the Part 1 Application Form if they have a corresponding application for plant variety protection in a UPOV member country other than Australia for the same variety and wish to claim an earlier priority date under s29. 

Two or more applications lodged for the same variety 

s28(3) of the Act requires that if two or more applications are lodged for the same variety, the Registrar must first consider the application having the earlier priority date. 

For example, this may occur if:

• Multiple different applicants independently lodge separate applications for PBR where they are seeking protection for the same variety. 

• An applicant files multiple applications for the same variety due to an administrative error. 

In such a situation, the PBR Office will first assess the application for the variety with the earliest priority date. Any other applications for that variety having later priority dates will be considered subsequently. 

However, applicants should note that any such applications for the same variety as an existing application with an earlier priority date may not be eligible for acceptance, subject to the requirements of s30(2)(a).