Plant Breeder Rights

Hand Planting 100

Plant breeder's rights (PBR) are used to protect new varieties of plants by giving exclusive commercial rights to market a new variety or its reproductive material. This includes transgenic plants, algae and fungi.

In Australia, plant breeder’s rights are provided under the Plant Breeder’s Rights Act 1994. An owner of the rights can direct the production, sale and distribution of the new variety, receive royalties from the sale of plants or sell the rights. Plant breeder’s rights are not automatic and in Australia it is necessary to file an application and have it successfully pass through an examination process to ensure that it meets the necessary legal requirements for registration.

In particular, it is necessary during examination to establish that:

  • the new variety is distinct, as well as being uniform and stable; and
  • the variety is clearly distinguishable from any other variety, the existence of which is a matter of common knowledge.

Examination typically requires a comparative planting trial.

Applications are accepted from the original breeder of a new or recently exploited variety. A new variety is one that has not been sold with the breeder’s consent. A recently exploited variety is one that has been sold with the breeder’s consent for up to one year in Australia, and up to four years for overseas varieties (or six years for overseas sale in respect of trees and vines).

A plant breeder’s rights registration provide the owner with the exclusive right to produce or reproduce propagating material, condition the material for propagation and sell, import, export or stock the propagating material.

The duration of protection is up to 25 years from date of grant for trees or vines and 20 years for other varieties.

Australia is a member of the International Convention for the Protection of New Varieties of Plants (the UPOV convention). Other countries that are members of this convention may provide protection similar to Australian Plant Breeders’ Rights. .smoorenburg. can make use of their extensive network of overseas IP associates to pursue protection for your plant varieties in individual member countries.