Plant breeder’s rights – an introduction

In Australia, the statutory scheme for the registration and protection of the rights of plant breeders is contained in the Plant Breeders Rights Act 1994 (Cth) (PBRA).  The PBRA was introduced because Australia was a signatory to the International Convention for the Protection of New Varieties of Plants, in Geneva in 1978.  The constitutional validity of the PBRA was considered in the case of Grain Pool of WA v The Commonwealth [2000] HCA 14 (Grain Pool).

Section 51 (xviii) of the Constitution provides the Commonwealth with the power to make laws with respect to “copyrights, patents of inventions and designs, and trade marks.” There is no specific mention of the rights of plant breeders.  It was alleged in Grain Pool that the PBRA was invalid, as it fell outside the scope of the power contained in 51 (xviii).  The High Court however, denied this claim, deciding that the PRBA was covered by the Constitutional power and was in fact valid and operational legislation.

So what exactly are plant breeder’s rights?

Section 11 of the PRBA provides that Plant Breeders Rights (PBR) in a plant variety is the exclusive right, subject to the PRBA, to do, or to licence another person to do, the following in relation to propagating material of the variety:

• produce or reproduce the material;
• condition the material for the purpose of propagation;
• offer the material for sale;
• sell the material;
• import the material;
• export the material; and
• stock the material for the purposes described above.

Registration of Plant Breeders Rights

IP Australia administers the scheme for registration of PBR pursuant to section 43 of the PRBA. A plant variety is registrable if:

•  the variety has a breeder;
• the variety is distinct;
• the variety is uniform;
• the variety is stable; and
• the variety has not been exploited or has only been recently been exploited.

Section 43 also describes the requirements for distinction, uniformity, stability and exploitation. These requirements mean that the scheme for registration of PBR is akin to the scheme for registration of a patent.

What is a plant variety?

Plant variety is defined in section 3 of the PBRA as a plant grouping (including a hybrid):

• that is contained within a single botanical taxon of the lowest known rank;
• that can be defined by the expression of the characteristics resulting from the genotype of each individual within that plant grouping;
• that can be distinguished from any other plant grouping by the expression of at least one of those characteristics; and
• that can be considered as a functional unit because of its suitability for being propagated unchanged.

What is plant material?

Section 43 also defined plant material in relation to a plant variety as one or more of the following:

• propagating material of the plant variety;
• harvested material of the plant variety; or
• products obtained from harvested material of the plant variety.

Exceptions

Like most things there are exceptions and these are provided for in section 16 which provides that any act done in relation to a plant variety covered by PBR that is done:

• privately;
• for experimental purposes; and
• for the purpose of breeding other plant varieties,

does not infringe the rights of the plant breeder.

Importance of registration

Plant breeder’s rights give the breeder the exclusive right to the plant material, meaning that the breeder can produce, reproduce, condition, offer to sell or sell, import or export the plant material, or stock the plant material for any of these purposes.

If the breeder does not register the plant variety, these rights will not be held exclusively, and others may also engage in and profit from these activities.

Links and further references

Legislation

Australian Constitution

Plant Breeders Rights Act 1994 (Cth)

Cases

Elders Rural Services Australia Limited v Registrar of Plant Breeder’s Rights [2012] FCAFC 14

Fleming’s Nurseries Pty Ltd v Hannaford [2008] FCA 591

Fleming’s Nurseries Pty Ltd v Sicliano [2006] FCA 757

Grain Pool of WA v The Commonwealth [2000] HCA 14

Sun World International Inc v Registrar, Plant Breeder’s Rights (1998) FCA 1260

Further information

If you need advice on plant breeders’ rights and how to ensure that they form part of your intellectual property strategy, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

---

Related insights about plant breeders’ rights