Plant breeder’s rights (PBR) are rights that have been introduced in order to protect new and distinct species of plants developed by individuals and companies. If you believe that you have developed a new and distinct variety of plants, you should seek to register this variety as soon as possible to prevent potential infringements.

What can I register?

There are certain types of plants that can be registered under Australian intellectual property law. These are:

  • New varieties: these are varieties of plants which are unique and distinct.
  • Recently exploited varieties: a recently exploited variety of plants refers to a plant that has not been sold 12 months before the owner’s application for PBR in Australia.
  • Essential derived varieties: these varieties are plants that are derived from any protected plant varieties.
  • Dependent varieties: due to the fact that the development of plant varieties is encourage in the interest of the public, plant breeding based on protected and registered plant varieties is legal under Australian law.
  • Harvested material: rights only extend to harvested plants which have been created through unauthorised development of the plant variety in cases where the original owner of the plant variety did not have a “reasonable opportunity” to register the plant variety.

What does registration allow me to do?

If you would like to protect your rights in developing and using your new variety of plants commercially, it is strongly recommended to register your plants under the Plant Breeder’s Rights Act 1994.

Registration will allow you to:

  • Sell the plant material
  • Import and export the plan material
  • Produce and reproduce the plant material

What if I don’t want to register it?

If you do not want to register your plant varieties, there are two options that you may consider:

(a)  keeping the plant variety a secret: If you believe that you can keep your plant variety a secret then you may not need to register it. However, if someone finds out about your plant variety and decides to register it under their own name, there are limited legal avenues that may assist you in defending your intellectual property rights.

(b)  making the plant variety public: if you make your plant variety public, then it will lose its status as a unique variety and will become part of the public’s common knowledge. Competitors will be able to use your plant variety for their own commercial purposes and you will not be able to receive royalties from the use and development of the plant variety. 

Conclusion

While the protection of plant varieties as a form of intellectual property may seem quite strange, if you believe that you have developed a new and distinct variety of plants you should seek legal advice and begin the PBR registration process. Registration will protect your legal interests in owning the plant variety, which will save you much time and money in the long run in preventing potential infringement of your intellectual property rights by competitors. To speak with an IP lawyer, contact LegalVision on 1300 544 755.

Ursula Hogben

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