Part 7. Grant of Plant Breeder's Rights

Date Published

 

Criteria for PBR grant

Under section 43 of the Plant Breeder’s Rights Act (the Act), a plant variety in which an application for PBR is made is registrable if it meets the following criteria.

The variety:

  • has a breeder; and
  • is distinct; and
  • is uniform; and
  • is stable; and
  • has not been exploited or has recently been exploited.
  1. A plant variety is distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge.
  2. A plant variety is uniform if, subject to the variation that may be expected from the particular features of its propagation, it is uniform in its relevant characteristics on propagation.
  3. A plant variety is stable if its relevant characteristics remain unchanged after repeated propagation.
  4. A plant variety is taken not to have been exploited if, at the date of lodging the application for PBR in the variety, plant material of the variety has not been sold to another person by, or with the consent of, the breeder.
  5. A plant variety is taken to have been only recently exploited if, at the date of lodging the application for PBR in the variety, plant material of the variety has not been sold to another person by, or with the consent of, the breeder, either:
  • in Australia - more than one year before that date; or
  • in the territory of another contracting party:
  • in the case of trees or vines: Actinidia (Kiwifruit), Bougainvillea, Campsis, Hedera and Vitis (grapevine) - more than 6 years before that date; or
  • in any other case - more than 4 years before that date.


Grant of PBR

The grant of PBR is made under section 44 of the Plant Breeder’s Rights Act, when the following criteria are satisfied:

  1. An application for PBR in a plant variety is accepted; and
  2. After examining the application (including the subsequent detailed description) and any objection to the application, the Registrar is, or continues to be, satisfied that:

    i. ​​​​​​​there is such a variety; and
    ii. the variety is a registrable plant variety within the meaning of section 43; and
    iii. the applicant is entitled to make the application; and
    iv. the grant of that right is not prohibited by this Act; and
    v. that right has not been granted to another person; and
    vi. the name of the variety complies with section 27; and
    vii. propagating material of that variety has been deposited for storage, at the expense of the applicant, in a genetic resource centre approved by the Registrar; and
    viii. if the Registrar so requires, a satisfactory specimen plant of the variety has been supplied to the herbarium; and
    ix. all fees payable under this Act in respect of the application, examination and grant have been paid.

A PBR examiner with grant delegation (grant delegate) must grant that right to the application.

 

PBR granting process

The PBR granting process starts immediately after the publication of the detailed description in the Plant Varieties Journal.  The grant delegate must ensure that:

  1. The Part 2 Description of a Variety form has been submitted by the Qualified Person.  In examining the Part 2 Application the grant delegate must be satisfied the Distinctness, Uniformity and Stability criteria are fulfilled under section 43 of the Act.
  2. The Certification by the Qualified Person form has been submitted by the QP.  This form certifies the specific functions carried out by the QP in completing the application process.  
  3. The Confirmation of Submission of Propagating Material to a Genetic Resource Centre form has been submitted. This provides information about the GRC where the propagating material for the variety has been deposited.
  4. When the variety has been field examined by a PBR examiner, a Field Examination Report must be completed by the examiner confirming the Distinctness, Uniformity and Stability (DUS) of the variety.  The concerned examiner must confirm that the Field Examination Report is consistent with the published detailed description.
  5. If the variety has not been field examined by a PBR examiner, the concerned examiner must outline the reasons for non-field examination and confirm that those reasons are consistent with the published detailed description.
  6. When the detailed description is based on an Overseas Test Report, a certified copy of the test report must be obtained from the overseas testing authority and the concerned examiner must confirm that the detailed description is consistent with the overseas test report.
  7. All fees including Application, Examination and Certificate Fee have been paid.
  8. The priority date arising from any foreign application is confirmed.  
  9. The variety has not been exploited or recently been exploited, meaning that the prior sale limit has not exceeded one year for all Australian sales and four years of overseas sales, except for trees and grape vines for which a six year overseas prior sale limit applies.
  10. Before proceeding to grant, there is a waiting period of six months from the date of publication of the detailed description in the Plant Varieties Journal.  This six month waiting period is mandatory for all PBR varieties in order to receive any objection under section 35 of the Act.
  11. When there is a variation in regards to the denomination, synonym, applicant’s name or breeder’s name in relation to the application and the variation notice has been published in the Plant Varieties Journal, a six month waiting period would also apply from the date of the public notice.
  12. The name of the variety must comply with section 27 of the Act at the time of the application.
  13. For Australian native species, under section 44(2) of the Act, the Confirmation of Submission of a Satisfactory Specimen to the Herbarium form has been submitted. Any comments received from ACRA in relation to the taxonomic identification of the variety or choice of comparator varieties must be considered before grant.

After the six month waiting period has elapsed following the publication of the detailed description; and

  • there is no objection to the application; and
  • all criteria for grants have been fulfilled within the meaning of section 43 of the Act; and
  • the grant delegate is satisfied that there is such a variety and the application is accepted; and
  • the applicant is entitled to make the application;
  • the grant is not prohibited by the Act or that right has not been granted to another person; and
  • a request for exemption from reasonable public access under section 19(11) of the Act has not been made or has been dealt with by the appropriate delegate (generally the Chief of PBR);

the grant delegate must grant Plant Breeder’s Rights under section 44 of the Act.

The grant process is finalised with the completion of a Grant Checklist by the grant delegate to ensure that all the above criteria for grants have been fulfilled.  

Once the Grant Checklist is completed by the grant delegate the variety is deemed to be granted from that day.  The Customer Operation Group (COG) is then informed to further process the grant certificate and the official letter of grant notifying the applicant.  The public notice of the grant is published in the following issue of Plant Varieties Journal.  

The PBR grant is issued for duration of 20 years for all species, except for trees and vines: 

  • Actinidia (Kiwifruit);
  • Bougainvillea;
  • Campsis;
  • Hedera;
  • Vitis (grapevine);

for which the duration is 25 years.



Amended Reasons

Amended Reason Date Amended

MM approving and testing the flow
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