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Plant Breeders Rights:
Overview with an Australian Native Plant Perspective

Nik Hulse

What is Plant Breeders Rights?

Plant Breeder's Rights (PBR) is a voluntary scheme that gives the breeder of a new variety specific commercial rights for twenty years (or longer in the case of trees and vines). They can pertain to all plant species including fungi, algae and transgenic varieties. As a comprehensive form of intellectual property, PBR acknowledges human effort or innovation in much the same way as the writing of a book is acknowledged by copyright. PBR is a specialised form of intellectual property rights for plant varieties. It has been designed to recognise the ownership of new varieties that have been created through a person's intellectual efforts.

Legislation

The Plant Breeder's Rights Act, 1994 (PBR) provides the legislative basis for the granting of intellectual property rights to new varieties of plants. It replaced the Plant Variety Rights Act 1987 (PVR) and is in accordance with international convention on the matter, the Union for the Protection of New Varieties of Plants, (UPOV) 1991.

The aims of the PBR scheme are to stimulate investment in plant breeding, encourage technology transfer and to provide access to new (elite) varieties thereby improving the competitiveness of Australia's plant industries. PBR, along with other intellectual property schemes (Patent, Trademark etc), add an extra dimension to the products of business, which when used appropriately, will not only benefit the breeder but all sectors of horticulture.

Australia was the first country to enact domestic legislation that conformed to the international convention on PBR (UPOV 1991). Conforming with UPOV 91 provides significant advantages in reciprocity. Worldwide PBR is used to protect some 36,000+ varieties.

Australian Native Plant Applications

The Plant Breeders Rights scheme has had a long association with Australian native plant varieties. It is appropriate that the first variety to be protected under plant variety legislation in Australia was a Macadamia in 1988. Since then more than 400 other applications for indigenous plant varieties, from around 80 genera, have been received. This represents around twelve percent of all applications received. More than a third of these applications have been for varieties of Anigozanthos, Brachyscome, Bracteantha, Chamelaucium and Grevillea (Table 1). Many of these varieties have also been protected in other UPOV member countries.

Of all native plant applications lodged in Australia, nearly 50 percent have been granted PBR, 30 percent are in progress and 20 percent have been withdrawn.

What are the Grantee's Rights?

PBR rights are focused on allowing exclusive commercial rights to a limited number of functions:

• Propagate or reproduce the variety
• Condition the material for the purpose of propagation
• Offer for sale or sell the variety
• Import or export the variety
• Stock the variety for any of the above purposes.

In some circumstances the rights can be extended to the harvest (eg cut flowers) and its products (eg oils) if the rights holder has not had reasonable opportunity to exercise their rights on the propagative material. However once each plant is sold, the PBR rights on that plant are exhausted and it can be grown on and harvested without further consideration to the breeder.

For example, a grower purchases 100 plants of a PBR protected riceflower and plants them on his property. He can harvest and sell cut flowers from these plants each year without infringing PBR. However, if he wished to increase the number of plants then more plants would need to be purchased. He cannot simply propagate the plants himself and thereby expand the area under cultivation. Except in the situations listed below, it CANNOT be multiplied without authorisation.

What's not protected? PBR does not protect a whole species. It only protects varieties of a species. Even then, the rights holder cannot exert a monopoly on propagative material used:

• For private and non commercial purposes
• For breeding or experimental purposes
• As food or fuel
• As farmed saved seed (FSS) [provided the original seed was legitimately obtained]

PBR is often confused with patents though in fact it only provides protection for the variety as a whole rather than its genes, germplasm and inventive processes used to create it, as allowed for in patents. In fact PBR is more closely aligned with copyright:

In copyright the specific combination of words is protected - not the words or letters themselves. PBR protects the variety not the genes.

Trade mark protects only a name of a product and not the variety itself. Accordingly, others can market an identical plant provided it is under a different name. Worse still, a trade mark cannot be used solely as a variety name. Thus 'protecting' a variety using trade mark relies mostly on bluff.

PBR does not prescribe or direct a grantee on how to use a new variety other than within two years there has to have been reasonable public access to it.

PBR simply recognises title (guarantees ownership) and provides deterrents for infringers ($55,000 for individuals and $275,000 for companies (together with civil actions for damages)).

The grantee: decides how and where the variety is used; determines a marketing strategy; whether royalties will be charged and at what rate; whether to sell seed of the variety, sell the rights, or involve others etc. The PBR office is not involved in the commercialisation in any way.

Growers wishing to multiply or sell a PBR-protected variety should approach the owner or their agent and negotiate terms. Normally, this occurs through some form of written contract or agreement. Owners contact details are available from the PBR office. In exceptional circumstances (eg where an owner has not taken reasonable steps to make a variety publicly available within two years of the grant of rights) an application can be made to the PBR office for the issue of a licence to grow/sell the variety. Reasonable remuneration to the owner will be part of any such licence.

Expectations of the PBR scheme vary widely. Plant breeders use many methods to develop new and improved varieties, however, PBR and UPOV 91 do not allow for the protection of all varieties. This sets a higher eligibility threshold than the previous Plant Variety Rights legislation which allowed protection of all new varieties whatever the source of the original variation.

While PBR allows for the exercise of rights on the propagative, harvested material or products of the harvested material, it does not allow complete discretion as rights are exhausted once material is sold with the breeder's consent regardless of whether royalties are paid.

Eligibility

To be eligible for PBR there are five main requirements. The variety must:

• Have a breeder. Breeding, under the PBR Act, involves discovery and selective propagation.
• Be distinct. A variety is distinct if it is clearly distinguishable from all other varieties of common knowledge.
• Be uniform. Subject to expected variation, the expression of its relevant characteristics are the same in the population.
• Be stable. Within limits, its relevant characteristics remain unchanged with repeated propagation.
• Not have been exploited or only recently exploited. It must be sold by, or with the consent of, the breeder.

The Process

The fundamental process of applying for PBR is similar regardless of whether the variety is from an Australian native plant species or is an introduced species (Figure 1). There is, however, one very important difference. It is a legislative requirement for all Australian native plant applications that a specimen be lodged with the Australian Cultivar Registration Authority (ACRA) before being granted. PBR seeks expert advice from ACRA on the merits of the application including the most similar varieties of common knowledge. PBR and ACRA also work closely in developing technical guidelines for the testing of specific Australian genera. These guidelines adhere to international standards and are utilised by other countries when testing Australian native plant varieties.

An application is made in two parts.

Part 1 requires the applicant to provide a prima facie case that they are eligible to apply, establish that the plant exists, provide a brief description of the characters that the applicant believes will distinguish the variety (from its parents and similar varieties), give details of the origin of the variety, and propose a new name for the variety.

All applicants whose applications are accepted by PBR, whether proceeding to immediate examination or deferring, receive provisional protection. Provisional protection provides the applicant with security so that they can test the variety or embark on commercialisation. Before the expiry of the twelve month period, the applicant must submit Part 2 of the application or pay the examination fee, otherwise the application is deemed to have been withdrawn.

Part 2 deals with a completed detailed description of the principal characters of the variety including particulars of the Distinctiveness, Uniformity and Stability (DUS) tests demonstrating how the variety is clearly distinguishable from the 'most similar variety or varieties of common knowledge'.

Part 2 must include descriptive data from a statistically designed, comparative, varietal trial conducted by the breeder (or agent) in Australia. The applicant or agent must be a PBR accredited Qualified Person (QP) or they must employ the services of an accredited QP who assumes responsibility for verifying, using acceptable scientific and technical means, claims made in Part 1 and Part 2 of the application.

Before deciding on whether rights should be granted, the PBR office referees the QP's scientific methods/analyses and undertakes an independent inspection of the comparative trial.

The aim of this rigorous evaluation process is to provide an unequivocal, comparative description of the new variety and to demonstrate under 'field' conditions how it differs from other similar varieties of common knowledge in Australia.

Prior to granting rights, varietal descriptions are widely publicised in Australia and overseas in the Australian Plant Varieties Journal.

Successfully completing PBR can take as little as nine months, though the average is closer to 2.5 years.

Figure 1 - Stages in processing a 'average' application for PBR in Australia QP - Qualified Person. The person employed by the applicant, who is responsible for the technical aspects of the application. DUS - distinctness, uniformity and stability. UPOV - International Union for the Protection of New Varieties of Plants. PBR - Plant Breeders Rights. PVJ - Plant Varieties Journal.

Examination of Each Application

The examination of an application occurs in four parts usually well separated in time. They involve an assessment of the written information; an inspection of the DUS trial by a PBR examiner; peer review of the published description; and other inquiries that the PBR office may make to establish overall compliance and eligibility. In addition, specific comment is sought from ACRA on applications concerning native species.

The PBR office is of the opinion that the rigorous examination process, the technically exacting comparative field trial, publication of varietal description and provision for objections, simultaneously diminishes unintentional infringement, increases the strength of protection and lowers the frequency of litigation over claims and infringement.

PBR enjoys industry credibility because each variety is independently examined to check its principal characteristics.

Deposit of Proprietary Material

As part of the breeder testing scheme, the applicant is required to maintain (or cause to be maintained) propagative material that complies with the description of the variety for the duration of the grant. As there is no absolute obligation to lodge material with a government genetic resource centre, most applicants choose to store varieties on their own premises.

Many countries (49) now have PBR legislation and the number is growing. The newest UPOV members, Croatia and Nicaragua, joined in September. It is likely that PBR systems based on the UPOV model will be the norm for most countries in the next 5 years.

PBR allows access to the best varieties from overseas. Equally, Australian breeders can penetrate foreign markets. Many overseas breeders will not release their material into another country unless some form of intellectual property protection is provided.

PBR provides a discretionary basis for commercialisation of a variety but is not prescriptive. PBR is best used in conjunction with other commercial contracts/licences as it catches 'escapees'.

PBR has successfully been sought and granted for a wide range of plant species. While these have tended to concentrate on specific genera, the potential of other species is only now being explored.

The process and procedures are straight forward, present no major obstacles, can be completed expeditiously and with minimum cost. PBR provides the guarantee of ownership which when allied with licensing and royalties, produces the incentives and impetus to stimulate plant breeding.

How do you Check Whether a Variety is Protected by PBR or Not?

There are at least five ways of identifying a PBR variety.

1. The most obvious is the inclusion of the PBR logo (below) on the plant label. There may also be an additional printed warning indicating that unauthorised propagation is an infringement. (While labelling is not compulsory, it may be hard for an applicant to prove a deliberate offence). Many advertisements also include the PBR logo. Some varieties protected under the previous Plant Variety Rights scheme still use the old but valid logo (a circle with PVR in the middle).
   
   Sometimes a label may include a warning that the owner intends to apply for PBR. This indicates that although the variety is not currently protected a PBR application may be lodged in the future. This is usually indicated by the following wording;
   
   

   Eligibility of this plant as a registrable plant variety under section 43(6) of the Plant Breeder's Rights Act 1994 will expire on .................

2. The Plant Varieties Journal contains a public notice of each protected variety. A description and photograph are published before PBR is granted. In addition a cumulative index is published in the December issue.
   
   
3. The PBR office maintains its own website (www.affa.gov.au/pbr) which is updated regularly. As well as a mine of other PBR information, it contains downloadable lists of varieties, which can be electronically searched for names, synonyms, genus species, applicant details, etc.
   
   
4. A copy of the PBR Register is maintained in AQIS offices in Sydney, Melbourne, Adelaide, Brisbane and Perth. However, full descriptions and images of all granted varieties will soon be freely available on the PBR website.
   
   
5. Call the PBR office. PBR staff can check a variety's name against both Australian and overseas registrations.

Cost verses Benefits

PBR is less expensive than other comparable intellectual property systems particularly as there is no need to seek legal assistance at any stage of the process. Most PBR applications can be completed for around $3000.

The benefits can be large depending on the volume and level of royalty payment, and financial returns can increase dramatically when varieties are sold under license for production overseas.

Further Information

Further information and advice can be obtained from:

Plant Breeders Rights Office
Department of Primary Industries and Energy
GPO Box 858, Canberra ACT 2601

Phone: 02 6272 4228
Fax: 02 6272 3650

or visit the website

This article is a reproduction of a paper presented at the SGAP 21st Biennial Seminar which was held in Canberra, ACT, 1 to 5 October 2001.

Nik Hulse completed his Bachelor of Science at the Australian National University in 1984. During his studies he worked part-time at CSIRO Plant Industry in the Wheat Breeding Program. In 1985 he joined CSIRO as a Tech-nical Officer in the Oilseed Breeding Program. In 1990, whilst at CSIRO, he completed a Postgraduate Diploma of Science in plant genetics. He joined the Plant Breeder's Rights (PBR) Office in 1995 as an examiner and became Senior Examiner in 1996. In 1998 he became Deputy Registrar.

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Australian Plants online - June 2002
Association of Societies for Growing Australian Plants