Part 3. Acceptance

Date Published


Customer Operations Group (COG) will receipt the application and enter the application details into the PBR database. COG will also create a case folder in the PBR EDMS using the application number as the identifier. All corresponding eCase files will be kept in that folder.

Examiner assessment of application

To comply with Customer Service Charter requirements, applications must be assessed and a Part 1 Examination – Report No 1 issued within 8 weeks of receipt of the application with IP Australia (not including public holidays or closures).

  1. Determine if the applicant is entitled to make the application for PBR. According to the PBR Act 1994 only the breeder or their agent can apply for PBR for a variety. If the applicant is not the breeder then proof of transfer of rights from the breeder to the applicant must be provided in writing to IP Australia.
  2. Check the application for the following:
  • if there is more than one applicant, 'Supplementary Pages to Part 1 application Form' (PBR00003) has been submitted for each additional applicant.
  • the name and address of the applicant/s and, if required, their agent has been supplied.
  • if the applicant is from overseas, check that they have an Australian or New Zealand postal address or an Australian or New Zealand agent. It is a requirement of the PBR Act that applicants must either have a postal address in Australia or New Zealand for the service of notices or have an agent in Australia or New Zealand.
  • the applicant is the breeder of the variety and a statement of that effect has been made.
  • if the applicant is not the breeder of the variety, confirm that the name and address of the breeder are the same as those on the legal transfer of rights.

3. Check the following details of the variety:

  • the correct botanical name (genus and/or species) has been used by searching the Genie database on the UPOV website. If the botanical name is not available in the Genie database, then additional searches are required in GRIN, APNI and IPNI databases.
  • if the plant is a tree or vine.  A list of trees can be found on CAJ/41/4.  (The notion of trees and vines for the purposes of the provisions on novelty and the duration of protection) in relation to taxa that are to be treated (deemed) as trees.  Taxa included in the list but not preceded with an asterisk, need to be assessed on a case by case basis as to whether the variety can be treated as a tree.
  • Australia accepts five genera as vines: Actinidia (Kiwifruit). Bougainvillea, Campsis, Hedera and Vitis (grapevine).
  • if a common name of the plant has been provided, check if the correct common name for the taxon has been used by searching the Genie database on UPOV website.
  • if a name for the variety has been proposed check if it is acceptable under the section 27 of the PBR Act 1994. See Variety Denomination Assessment to determine if the proposed name is acceptable.
  • if a synonym for the variety has been proposed and if it is acceptable under the section 27 of the PBR Act 1994. Under the PBR Act a synonym is an additional name of the variety by which the variety will be known and sold in Australia. See Variety Denomination Assessment to determine if the proposed synonym is acceptable.
  • if the variety has been known by any other names (e.g. trade names, breeders references or others) and record them as needed.
  • if the variety is an Australian native species. If yes, check if a herbarium specimen has been submitted or will be submitted to the Australian Cultivar Registration Authority (ACRA). It is mandatory to submit a herbarium specimen to ACRA for Australian native species.

Note: the ACRA is currently declared as the herbarium for the purposes of section 71 of the PBR Act.

  • if the species has been declared a noxious weed in any Australian State or Territory. If yes, have details been provided.

4. Check if the applicant has made a statement in regards to their obligation to notify the supplier/owner of the original germplasm of the their intention to obtain PBR for the variety

5. Check if the applicant has made a statement in regards to their obligation to notify their current employer/funding agency, of their intention to acquire PBR for the variety

6. Check the UPOV Pluto database to see if an application for PBR in this variety has been lodged in a country other than Australia.  

  • if Australia is not the country of first lodgement, check if details of previous overseas applications have been provided
  • if a priority claim has been made, check if certified copies of the earliest overseas application lodged with a UPOV member state have been provided. If not, they must be provided within 3 three months from the date when the Australian application was lodged. Copies must be certified by the Authority that received the foreign application to be a true copy of the documents.

7. Check if the variety has been sold in Australia or overseas:

  • If sold in Australia with the breeder’s consent check if the date of first sale and the name under which it was sold has been provided. The prior sale limit for any Australian sale is one year from the date of lodgement of the application.
  • If sold overseas with the breeder’s consent, check if the date of first sale and the name under which it was sold has been provided. The prior sale limit for any overseas sale is four years from the date of lodgement of the application for most species, except for trees and grape vines, where a six year prior sale limit applies.

8. Determine if the variety has been exploited or not, and if so, if it has only been recently exploited by taking into account first sale dates in Australia and overseas.

9. Check if details of the origin and parentage of the variety have been provided.

10. Check if information on the seed and pollen parents have been provided.

11. If selection from source material has been indicated as the origin of variety, check if the details of germplasm used have been provided.

12. Check if the prima facie case for breeding has been established from the characteristics or combination of characteristics which makes the candidate variety clearly distinguishable from its parents or source material.

Check this document for further guidance on the prima facie case for breeding.

13. Check if the prima facie case for distinctness has been established from the characteristics or combination of characteristics which makes the candidate variety clearly distinguishable from its parents or source material and from the 'most similar Varieties of Common Knowledge (VCK)' (the comparators).

Check this document for further guidance on the prima facie case for distinctness.

14. Check if the details of the breeding procedures used to initiate the new variety have been provided. Ideally the applicant should provide:

  • where observations were first made (property and/or town and country);
  • where other work was conducted (if applicable);
  • main selection criteria used to develop the variety;
  • mode of propagation between generations;
  • the number of generations the variety has been maintained in its present form;
  • the occurrence of any off types;
  • brief outline of the procedures employed to develop the variety.

15. If there is any doubt about the breeding procedures used to initiate the new variety check the Breeding Panel Report for further clarification.

16. Check if a statement has been made with respect to whether the variety is a genetically modified organism or not. For genetically modified organisms a reference number from the Office of the Gene Technology Regulator is required.

17. Check if the name and location of the Genetic Resource Centre (GRC) has been provided (this is where the propagating material for the variety will be maintained). A GRC must be in Australia except where the Registrar has given written permission for an overseas GRC. A post box address is not acceptable as GRC location.

18. Confirm how the applicant has proposed the DUS test will be conducted (e.g., based on overseas test data, a comparative growing trial in Australia or a verification trial in Australia).

  • If DUS test is based on overseas data, check if the test dates and name of the testing country have been provided and a date when the official overseas test data will be available has been provided.
  •  If the DUS test report availability date is within 6 months, include a note in the first report explaining that if the official DUS test report is not received by the due date or is deemed not suitable then the Pre-Examination Trial Agreement form (see “Pre-Examination Trial Agreement” below) needs to be completed at that time.
  • If the DUS test report will not be available until after 6 months, the Pre-Examination Trial Agreement form needs to be completed by the QP at the time of acceptance. This is to ensure that an appropriate field trial in Australia is established and progressing if the overseas DUS test report is found to be unsuitable.

19. Check if the applicant has provided a suitable date when the PBR office will be able to examine the comparative growing trial or the verification trial in Australia or examine the overseas test data for DUS.  Examination is done to verify the distinguishing characteristics claimed in this application and to verify that they are stable and uniform. It is mandatory to provide a proceed date.

20. Check if the applicant has made a declaration that the information given in all parts of the application and attachments is true and correct. If there is more than one applicant, check if a ‘Supplementary Pages to Part 1 application’ form (PBR00003) has been submitted for each additional applicant.

21. Check if a qualified person accredited to test the variety has been nominated using the ‘Nomination of a Qualified Person’ form (PBR00005).

22. Check if appropriate fees have been paid and the receipt is on file before the application is recommended for acceptance.

23. If any deficiencies are identified in the application, then a request for Additional Information is sent to the Applicant or Agent and QP and the report saved as “Part 1 Examination – Report No 1” in the relevant EDMS case file.

24. The Applicant or Agent and QP are given 30 days in which to respond.

Amended applications – examiner

  1. Amended application pages can be submitted by any of the following means – mail, email or by hand

  2. The amended application is assessed.

  3. If deficiencies are still present in the amended application, then a further request for additional information is sent by email to the applicant or agent and QP

  4. The applicant or agent and QP are given 30 days in which to respond.

Reminders – examiner

  1. Normally a 30 day period is given for applicants to provide additional information

  2. If no response is received to the Request for Additional Information, a reminder is sent by email. The applicant is given a further 30 days to respond.

  3. If no response is received to the first reminder a second reminder is sent. Note that the second reminder references the possibility of rejection if the deficiencies are not corrected.

  4. If no response is received the application may be considered for rejection

Recommendation for acceptance - examiner

  1. The Examiner completes the final acceptance report and provides a recommendation to the Acceptance Delegate as to whether or not the application be accepted or rejected.
  2. If the Acceptance Delegate is satisfied that the requirements of section 30(2) of the PBR Act are met then the delegate must accept the application. All related Part 1 Examination report(s), checklists, search results or any other relevant documents are to be filed in the corresponding eCase folder.

  3. The applicant is then notified either that their application has been accepted or rejected

  4. Examiner notifies COG of acceptance through PBR eCase

Pre-examination trial agreement - examiner

  1. Once the PBR application is accepted, where appropriate, the examiner will send a pre-examination trial agreement (PETA) form to the nominated QP.
  2. QPs need to complete all parts of the PETA form and provide detailed information on how they propose to conduct the DUS test, including information on location, date, and design of the DUS trial, grouping characteristics to identify the most similar VCK/VCKS as well as the details of any contingency plans to overcome potentials risks to trial viability.
  3. QPs are given 30 days in which to respond and complete the PETA form.
  4. The nominated examiner will review the completed PETA form and decide if the proposed DUS trial is sufficient.
  5. QPs, applicants or agents can raise concerns with the Chief of PBR if an agreement cannot be reached.​​​​​​

Note: For applications based solely on an overseas DUS test report, a pre-examination trial agreement may not be required if the overseas DUS test report is available within 6 months from acceptance date (see above: Examiner assessment of application, point 18).

Recommendation for rejection – examiner

In some cases, the examiner assessing an application for acceptance under section 30 of the PBR Act is unable to accept the application into provisional protection.

This may occur if:

  • information/formalities to satisfy the requirements of section 26 of the Act or the application have not been completed by the applicant or their agent;
  • or fails to establish prima facie case for treating the plant variety as distinct from other varieties.  

In some cases, the delegate may also reject the application based on the applicant’s failure to provide a satisfactory response as are required by the approved form.

  1. The application is assessed under the acceptance procedures, and if necessary, the applicant or agent is offered the opportunity to correct any deficiencies
  • The applicant is usually allowed two opportunities to correct deficiencies, although some flexibility is allowed in cases where substantial progress towards a resolution is occurring or the circumstances of the application warrant a further extension(s) of time.
  • If the applicant does not correct the deficiencies, the application is considered for rejection
  • The issue is referred to the Chief of PBR
    • Before the decision is taken to reject the application, the applicant is given 30 days to provide satisfactory reasons as to why the application should not be rejected.
  1. If the applicant does not respond within the deadline or the response is found unsatisfactory, the delegate may proceed to reject the application in accordance with section 30 of the Act
  • The Delegate must provide written notice to the applicant of the rejection which sets out the reasons for the rejection under subsection 30(5) of the Act.

Note: There is a 28 day period where an applicant can apply to the Administrative Appeals Tribunal to review the decision (subsection 77(v) of the Act).

  • If an appeal has been lodged, the file is referred to the Chief of PBR.

Public notification of acceptance - examiner

A list of applications accepted during each quarter is published in the Plant Varieties Journal

Templates

Use PBR Exam Report Form: http://cbr1pdox01/intelledox/producer

Delegations

Currently, delegation to make a decision to accept or reject an application include:

  • Registrar, PBR
  • General Manager, PCPEG
  • Assistant General Manager, PCPEG
  • Chief of PBR
  • Senior Examiner of PBR
  • PBR Examiners with PBR Acceptance delegation

Amended Reasons

Amended Reason Date Amended

- Add more details in Point 18, Examiner assessment of application in Part 3. Acceptance.
- Add instructions on Pre-examination trial agreement.
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