5.2 Overseas DUS Test Reports

Date Published

Test growing outside Australia

Section 38 of the Plant Breeder's Rights Act allows DUS data produced by test growing of plant varieties outside Australia (referred to as overseas DUS test reports) to be used in lieu of conducting a test growing in Australia, provided that certain conditions are met. These conditions relate to:

  • the breeding location;
  • filing of applications;
  • sufficiency of the data; and
  • the likelihood that the candidate variety will express its distinctive characteristic(s) in the same way when grown locally. 

An overseas test report may be considered in place of a test growing conducted in Australia where the following basic criteria set out in s38(1) of the PBR Act are met:

a) If a plant variety:

i) was bred outside Australia; or

ii) was bred in Australia but, before an application for PBR was made in Australia, an application for PBR was made in a contracting party other than Australia; and 

b) an application under the Act for PBR in the candidate variety has been accepted. 

In addition to these basic criteria, one of the criteria set out in s38(2), (3), (4) and (5) of the Act must be met:

1. Section 38(2) allows accepting data from an overseas country when there is also a trial for the same variety grown in Australia.

2. Section 38(3) allows accepting data from an overseas country under a bi-lateral agreement between Australia and that country.  

3. Section 38(4) of the PBR Act requires that the overseas test growing is “equivalent” to a test growing of the variety in Australia.  An overseas test growing is equivalent to a test growing in Australia when it meets one of the following criteria:

a) The test growing is conducted by a UPOV member state using UPOV technical guidelines for DUS testing; or

b) The test growing is conducted by a UPOV member state using their harmonised national technical protocols for DUS testing; or

c) The test growing is conducted by a non-UPOV member state using test protocols which are harmonised with standard UPOV technical guidelines for DUS testing; or

d) The test growing is conducted by the breeder in overseas using UPOV technical guidelines for DUS testing which is supervised and certified by a PBR accredited QP; or

e) The test growing is conducted by a competent overseas authority using internationally recognised protocols (particularly under controlled conditions) and certified by a PBR accredited QP;

4. Section 38(5) allows additional flexibility to accept overseas data when test growing of the candidate variety will require longer than two years. In such cases the following conditions should be met:

a) Test growing of the variety carried out outside Australia has demonstrated that the variety has the particular characteristic; and

b) Any test growing of the variety carried out in Australia would probably demonstrate that the variety has that characteristic; and

c) If a test growing of the variety in Australia sufficient to demonstrate whether the variety has that characteristic were to be carried out, it would take longer than 2 years. 

Obtaining overseas test reports

The PBR Office coordinates with various overseas testing authorities to obtain their test reports on behalf of the applicants or their agents. A PBR examiner is designated for this purpose as the Test Report Coordinator.

When the overseas test report is available, the Test Report Coordinator prepares an Overseas Test Report Request form for the relevant overseas testing authority.

The PBR office does not bear the cost of the test report charged by the overseas testing authorities. The applicant or their agents must undertake the responsibility for payment. Therefore, the official request form is sent to the applicant or their agents (or sometimes to the QP) for signing the undertaking for payment in accordance with the official request form.

The official request form is returned to the Test Report Coordinator, once the undertaking for payment is signed off.

The Test Report Coordinator then forwards the official request form to the relevant overseas testing authority.

The overseas testing authority sends an invoice directly to the applicant or their agent for the cost of the report. Any invoice sent to the PBR office should be forwarded to the applicant or their agent for payment.

Once the payment is made, the overseas testing authority sends the official copy of the test report to the Test Report Coordinator.

The Test Report Coordinator reviews the test report supplied by the overseas testing authority. When the test report satisfies the criteria outlined in s38 of the PBR Act, the Test Report Coordinator sends a copy of the overseas test report to the QP.

Use of overseas test reports

The most important consideration for the use of overseas test report is either that the most similar varieties of common knowledge (including those in Australia) have been included in the overseas DUS trial, or that the new overseas variety is so clearly distinct from all Australian varieties of common knowledge that further DUS test growing is not warranted.

Sufficient data and descriptive information should be available to publish a detailed description of the variety in an accepted format in the Plant Varieties Journal to satisfy the requirements of the PBR Act.  Overseas data can be supplemented with other information, such as from an Australian verification trial.

The applicant or agent and Qualified Person should use the overseas test report to complete the Part 2 Application form and make a decision on how to proceed in view of the completeness of the information, the comparator varieties (if any) used in the overseas DUS trial and their knowledge of similar Australian varieties that may not have been included in the overseas test report.

When a description is based on an overseas test report, the Australian PBR will not be granted until after the decision to grant PBR in the country producing the overseas data is made. The final decision on the acceptability of overseas test report rests with the PBR Office as the examiner needs to be satisfied that the resultant description and completed Part 2 Application form satisfy the requirements of the PBR Act.

Taxa that must be trialled in Australia

Whilst the PBR Office accepts overseas DUS test reports, it is the policy of the Office to additionally require an Australian verification trial for the following taxa due to the wide genotype and environment interactions that have been historically reported. Varietal descriptions from overseas trials have been different in some cases from those obtained from trials grown under Australian conditions. Consequently, for the following taxon a PBR verification trial must be conducted in Australia:

  • Solanum tuberosum (Potato)

Amended Reasons

Amended Reason Date Amended

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