Practical Law ANZ Glossary w-020-7827 (Approx. 3 pages)
Plant breeder's rights
A form of intellectual property right obtained on registration, which grants exclusive rights to plant breeders to protect new varieties of plants, algae and fungi that are produced by traditional breeding and transgenic modification. Plant breeder's rights (PBR) are also known as plant variety rights. PBR extend beyond the plant varieties themselves, to the propagating material of the plant and other dependent varieties, including those "essentially derived" from the protected variety. The holder of PBR obtains exclusive rights for 20 to 25 years. PBRs confer on commercial breeders the ability to earn a return on their investment. The commercial rights obtained cover exclusivity to:
Produce or reproduce the material.
Condition the material for propagation (for example, cleaning, coating, sorting, packaging and grading material).
Commercially deal with the material (offer for sale, sell, import, export).
Stock the material for any of the above purposes.
Some exemptions apply to the rights. These include:
The use for private or non-commercial purposes, for experimental purposes and for breeding other plant varieties.
The use and sale of the propagative material of a protected variety as food, a food ingredient or fuel.
Farmers have the right to condition and save sufficient seed of a protected variety to allow them to sow the subsequent crop on their land (or that of a partner or bone fide share farmer). This exemption will not apply where the crop has been declared by regulation to be one to which farm saved seed does not apply.
In Australia, the PBR regime is administered under the Plant Breeder’s Rights Act 1994 (Cth) by IP Australia. The Australian legislation is comparable to the regimes in other countries that are members of the International Union for the Protection of New Varieties of Plants Convention (UPOV Convention). Under the UPOV Convention, an Australian PBR applicant can claim priority in an equivalent application made in other UPOV member countries, provided the subsequent application is made within 12 months of the Australian filing date. Similarly, an applicant who has filed in another UPOV member country can claim priority in an Australian PBR application if filed within 12 months of the foreign filing.