3.6 What are plant breeders’ rights (PBR)?

A breeder of a novel variety of plant that is distinct, uniform and stable, can register exclusive rights to use, license or sell the plant variety.

PBR encourage innovative plant breeding . The novel plant variety may have been developed locally or overseas. Here, ‘novel’ includes any recently exploited variety, i.e. any variety that has been sold: (i) in Australia with the breeder’s consent for up to 12 months before, or (ii) in other countries up to four years (six years for trees and grapevines) before, application for PBR in Australia.

PBR protection applies for 20 years for most plant species, and 25 years for trees and grapevines (Vitis vinifera). Extensions are possible.

In Australia, an intentional infringement of PBR attracts a penalty of about A$85,000 for individuals. The penalty for corporations is up to five times greater. Farm-saved seed for planting next season may be exempted from infringing PBR.

Registration and grant

PBR require registration – there are no specific unregistered rights. Registrations must be made separately in each desired jurisdiction. Accepted applications provide provisional PBR for 12 months. A successful growth trial of the plant variety is usually required before PBR are granted. PBR-protected varieties are searchable in public databases.

Essentially derived varieties and other extensions

A PBR grantee can apply to have another plant variety declared essentially derived from their PBR-protected variety, and thereby extend their PBR to include that other variety, even if someone else developed it. PBR protection can also extend to any novel variety of which reproduction depends on the repeated use of the protected variety, and to harvested material.