Plant Breeders Rights by Bernadette Hawkins PhD MIP

Plant breeder’s rights (PBR) are a form of intellectual property for protection of new plant varieties.  Protection is not automatic; in order to obtain protection of a plant variety it is necessary to register the variety with the PBR Office.  The registration process can take 2-3 years and goes beyond the scope of this article, however, I would be happy to discuss it with any interested members of the Sub-Tropical Fruit Club of Qld. Inc. (STFCQI).

Over the past year there have been concerns expressed during meetings of the STFCQI that PBR have a negative impact on the activities of members.  At the outset, I stress that this is an urban myth, and the purpose of this article is to provide general information about PBR so that members can see that it should not impinge on their activities and that there may in fact be some members who could utilise the scheme.

The aim of PBR is to encourage the development of new varieties of plants for Australia’s domestic industries and for export.  PBR are intended to provide a balance between providing plant breeders with an opportunity to obtain a reward for producing a new plant variety, and providing the benefits to growers and society through access to new and improved plant varieties.

Protection can be obtained for all species including fungi and algae, but to be eligible for protection, the variety must satisfy a number of criteria relating to characteristics and suitability for propagation:
• have a breeder (that is, it cannot be a naturally occurring variety)
• distinctiveness (the variety must be clearly distinguishable from other known varieties)
• uniformity (with respect to the relevant characteristics which make it a distinguishable variety – limited variation is allowable, there does not have to be total or absolute uniformity)
• stability (relevant characteristics remain unchanged after repeated propagation)
• the variety must not have been exploited (in the commercial sense), or exploited only recently (specific time periods apply dependent on the species)

The maximum duration of PBR is 20 years (25 years for trees and vines), subject to payment of an annual fee.  Once the PBR has expired (at the end of the 20 or 25 year term, or if the annual fee has not been paid), the variety can be freely used by the public.

PBR provides the breeder with the right to exclude others from using the propagating material (including seed, cuttings, grafting stock) of a registered variety for a range of commercial activities (including production, reproduction, sale, import, export) and from misusing the variety name.  In other words, all propagating material is protected under PBR, not just the plant itself.

However, importantly for STFCQI members there are exemptions to the protection afforded a breeder.  Specifically, protected varieties can be used without permission of the PBR owner where that use is:
(a) private;
(b) for non-commercial purposes;
(c) for experimentation; or
(d) as a starting point to breed other varieties.
For example, if you were to purchase a fruit protected by PBR from your local green-grocer, you could save any seeds, plant them and produce a tree for your own private, non-commercial use.  However, you could not sell the seeds, the tree or any propagating material.

Some members may also be pleased to know that propagating material harvested from a legitimately obtained protected plant variety can be saved for further plantings (farm-saved seed exemption).  However the harvested material from such further plantings cannot be sold commercially. Thus, PBR should not be seen as inhibiting the activities of STFCQI members, particularly those members not engaged in commercial activities relating to propagation of plants.  For those members who are engaged in commercial activities relating to propagating plants, consider embracing the PBR system, it may work to your advantage!

(Bernadette, a STFCQI member, is a Patent Attorney and keen fruit devourer - Russell)