Articles > Intellectual Property

What Are Plant Breeders’ Rights?

January 7, 2021   Daniel KatzPhilip Evangelou

Plant Breeders’ Rights (PBR) is a form of intellectual property (IP) relating to plant breeding. Specifically, PBR are exclusive rights given to plant breeders who are looking to register a particular type of plant. Essentially, PBR provides the holder with an exclusive right to market their plants for up to 25 years.

This article will explain the nature of PBR, its scope and its exceptions.

What is Plant Breeders’ Rights?

As previously stated, PBR provides the right holder with an exclusive right to market their plants. However, this is not the extent of their rights. According to the Plant Breeder’s Right Act 1994 (‘the Act’), the rights holder is also entitled to:

  • Produce or reproduce the material.
  • Sell the material.
  • Offer the material for sale
  • Import and export the material.
  • Condition the material for the purpose of propagation – this includes cleaning, coating, sorting, packaging or grading.
  • Stock the material for the purposes of the above rights.

Propagating materials relates to the materials of a particular plant variety that also lends to the production of another plant variety. For example, this includes seeds, bulbs and other forms of reproductive material.

Scope of Plant Breeders’ Rights

The scope of PBR can be quite complex. In essence, a plant variety can only be registered if it is ‘new’ or ‘recently exploited’. Here, a new plant variety is one that has not been sold with the breeder’s consent.

An exploited plant variety is one that has not been sold to another person with the consent of the breeder. This can occur both inside or outside of Australia. 

There are also several other varieties that the Act can potentially extend to:

  • Essentially derived plants: This refers to any plant variety that is essentially derived from its initial variety. 
  • Certain dependent plant varieties: This refers to plant varieties that are not clearly distinguishable from its initial variety. Essentially, these rights can extend beyond the new variety to other certain, and similar varieties. 
  • Harvested material in certain circumstances: PBR may also extend to products and materials sourced from harvesting materials. This includes if the material of a variety, is produced or reproduced without the licensee’s authorisation. 

Exceptions to Plant Breeders’ Rights

While there are several safeguards that protect PBR, it is important to understand the exceptions. In this, the following acts do not infringe upon PBR:

  • Certain acts done for private, experimental or breeding purposes. 
  • Conditioning and use of farm saved seed.
  • The use and sale of propagative material of the relevant variety as a food, ingredient or fuel.

To Sum Up

Protecting IP is extremely important. The last 30 years has seen a steep increase in the number of different plant varieties being created. Therefore, if you have created a plant variety, it is important that you understand your PBR, and the relevant legislation.

If you would like to speak with our intellectual property lawyers, just contact us via 1300 337 997 or by filling out the contact form.

About Daniel Katz

Daniel KatzDaniel is a legal intern at OpenLegal, placed in our legal content team. He is currently studying a Bachelor of Laws at the University of Technology Sydney. Daniel's interest lies in economics and media/startup law.

About Philip Evangelou

phillipPhil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.