Have you discovered a new plant or produced a unique genetically modified variety with potential for commercial use? In this situation, it is important to protect your intellectual property rights. Obtaining Plant Breeder’s Rights (PBR) can help with this. PBR ensures that you can receive royalties for sale of the plant and also gives you the exclusive right to sell your licence on it.
If you are interested in learning more about PBR or would like to make an application, it is recommended that you contact an experienced IP attorney.
What Are Plant Breeder’s Rights?
PBR protects the intellectual property for plant breeders with new plant varieties. For example, farmers with PBR retain the exclusive right to reuse their unique seed. Similar to a trademark, it also protects the name of the specific plant type. PBR gives the licensor the right also to import and export the plant material.
In Australia, PBR are regulated under the Plant Breeder’s Rights Act 1994 (Cth). Under this Act, plant is defined as “all fungi and algae but does not include bacteria, bacteroids, mycoplasmas, viruses, viroids and bacteriophages”. However, the Act does not cover private, non-commercial or experimental acts surrounding the plant variety.
Duration of Protection
PBR lasts up to 25 years for trees and vines and 20 years for other plant varieties.
Applying for Plant Breeder’s Rights
1. Meet the Criteria
Check that your plant variety is eligible for protection under PBR.
The original breeder(s) or someone who has been granted ownership rights from the original breeder can initiate an application.
2. Database Search
3. Online Application Part 1
Part 1 of the application process is completed through an online form on the IP Australia website. This form must be submitted within 12 months from the first day of commercial use of the plant variety. You will need to nominate a Qualified Person (QP) to assist you with the next step.
4. Trial Stage
This is conducted with the guidance of a QP or authorised test centre to ensure that the plant variety is sustainable for future use.
5. Online Application Part 2
Upon successful approval of Part 1 and the clinical trials, the online form for Part 2 can then be completed, again through IP Australia https://www.ipaustralia.gov.au/tools-resources/forms/part-2-description-variety.
A breeder will be notified of approval or rejection in writing.
Infringement and Other Breaches
Proven infringement of PBR under commercial purposes such as producing, offering the material for sale and selling the material can attract a maximum fine of $90, 000.
An individual who is not given the exclusive right to use the plant variety but misleads to the effect that they were can be liable for a fine of $10, 800.
However, given the complexities that can come with naming and creating a unique plant, the Act allows for a defence of innocent infringement. To use this defence, a person must prove that they were not aware and had no reasonable grounds for suspecting that PBR existed for a plant variety.
Legal protection for new products is extremely important, given the increasing complexities that can arise from IP disputes. To recognise advancements in the agricultural industry, Plant Breeder’s Rights is set to be an expanding area of legal interest.
To help alleviate some of the technical difficulties in the application process, LawPath can arrange fixed-price quotes from experienced IP attorneys to provide you with the necessary advice.
Interested in whether you have Plant Breeder’s Rights? Contact a LawPath consultant on 1800LAWPATH from our network of 600+ expert lawyers to learn more about applying for one and receive answers to your legal questions.