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Plant Breeder’s Rights – growing from strength to strength

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The aim of the PBR system – commonly referred to using the  symbol – is to encourage the development of new plant varieties for Australia’s domestic and export markets.  PBR therefore has the potential to offer significant commercial advantages for Mason Sier Turnbull clients involved in the exploitation of new plant varieties in the agricultural, horticultural and ornamental plant sectors.

Subject to certain exceptions, the Plant Breeder’s Rights Act 1994 (Cth) (the “Act”) grants a PBR owner the exclusive right to produce, reproduce, condition, sell, import, stock or offer to sell the propagating material of newly developed plant varieties that are ‘distinct’, ‘uniform’ and ‘stable’.

However, PBR owners have struggled with various aspects of the PBR system including
(i) the interpretation of the Act
(ii) the ability of PBR owners to bring PBR infringement proceedings
(iii) difficulties with the collection of royalty payments made possible through the exploitation of the new plant variety. 

In light of these concerns, the Australian Council of Intellectual Property (“ACIP”) has published a report recommending changes to the PBR system.  The report has the potential to significantly strengthen the rights of PBR owners, and focuses on four main areas:

Strengthening Legislative Rights

For example, ACIP recommends:
• a new “purchase” right is included in the suite of exclusive rights available to owners of approved plant varieties.  The intention is for the PBR owner to be able to collect royalties from the “purchase” of the propagating material by end users of the propagating material.  This has particular advantages for the grains industry where the current royalty collection process is complex; and
• legislative amendments to clarify certain provisions of the Act including the definition of “propagating material” and the test for determining “essentially derived varieties”, as well as confirming that it is an infringement of PBR to knowingly declare a PBR-protected variety to be a non-PBR protected variety.

Improving Enforcement Procedures

For example, ACIP recommends:
• the proposed second tier of the Federal Court should have jurisdiction for PBR matters.  Lower court fees, faster procedures and increased emphasis on alternative dispute resolution are features of the proposed second tier and would greatly assist PBR owners in enforcing their rights;
• the proposed IP dispute resolution centre of IP Australia could be extended to encompass PBR matters; and
• IP Australia liaises with federal law enforcement agencies with a view to increasing the number of investigations and prosecutions of PBR cases.

Increasing Available Remedies

For example, ACIP recommends the introduction of:
• an “Information Notice” system into the Act whereby a PBR owner is able to serve notice on a suspected infringer requesting information on the origin of plant material.  If the suspected infringer does not provide the required information within a set timeframe, PBR infringement proceedings may begin with certain adverse implications for the suspected infringer;
• seizure powers for Customs to withhold allegedly infringing plant material; and
• exemplary damages provisions for PBR infringement to be included in the Act (to be consistent with the Patents Act 1995 (Cth)).

Supporting Industry

For example, ACIP recommends:
• IP Australia focuses its PBR educational and awareness efforts in the tertiary sector, such as universities and agricultural colleges;
• subject to the request of the plant breeding industry, the Government should consider establishing an industry peak body or collecting agency.

It is anticipated that the Government will now review the recommendations from the ACIP report and propose changes to the Act. This has the potential to grow the PBR system from strength to strength, thereby making plant breeding a more attractive commercial pursuit.

Our Intellectual Property lawyers can assist plant breeders on all legal issues associated with the plant breeding process – including research, development, protection, enforcement, branding, commercialisation, royalty collection and import and export issues.

Author: Noelene Treloar