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Plant Breeder's Rights - Phillips Ormonde Fitzpatrick | Intellectual Property Law Firm - Patent and Trade Mark Attorneys - Research and Investigation

Plant Breeder's Rights



This page contains information about Plant Breeder's Rights in Australia.

Eligibility for Registration



The breeder of a new plant variety can obtain protection for that variety under the Plant Breeder's Rights Act 1994. Only varieties that are new or recently exploited can be registered. 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 12 months in Australia, or up to 4 years abroad (6 years for trees and vines). The new variety must be distinct from all other varieties of common knowledge, uniform, and stable.

Scope of Plant Breeder's Rights


A registered Plant Breeder's Right gives the owner the exclusive right to do, or license another to do, any of the following:

  • produce or reproduce the material;
  • condition the material for the purpose of propagation;
  • offer the material for sale;
  • sell the material;
  • import the material;
  • export the material;
  • and stock the material for any of these purposes.

Exceptions to Plant Breeder's Rights


Exceptions to the breeder's right are the use of the variety privately and for non-commercial purposes, for experimental purposes, and for breeding other plant varieties - irrespective of the existence of Plant Breeder's Rights in the variety. Farm saved seed is generally permitted.

Steps for securing a Plant Breeder's Right


Applying for Plant Breeder's Rights is a two-part process.

Part 1 involves:

  • completing an application form;
  • supplying a photograph of the new variety;
  • and paying the application fee.

At this stage, the applicant must also nominate an accredited 'Qualified Person' to cultivate the variety and perform the comparative trial of Part 2. If the variety is an Australian species, the applicant should additionally forward a herbarium specimen to the Australian Cultivar Registration Authority as soon as possible. Provisional PBR protection is then granted to the variety at the close of Part 1.

Part 2 involves:

  • conducting a comparative growing trial to demonstrate the Distinctness, Uniformity and Stability of the new variety, as compared to other similar varieties;
  • completing a further application form and paying an examination fee;
  • depositing propagating material in a Genetic Resource Centre;
  • examination of the application by the PBR Office;
  • publication of details of the new variety in the Plant Varieties Journal, followed by a six-month period for objection or comment;
  • upon successful completion of all the requirements, issuance of a Certificate of Plant Breeder's Rights.

While local plant breeders frequently file their own applications, foreign breeders often find it convenient to use a firm such as ours.

Asserting your granted rights (or defending yourself against allegations of infringement) is a highly specialised legal area, and one Phillips Ormonde Fitzpatrick has experience in.