Plant Patents and Plant Breeder’s Rights

In Australia and New Zealand, plant derived innovations can be protected under both the Patent and Plant Breeder’s Rights (PBR) systems. Both systems may be used to protect different aspects of a new plant variety, each having different advantages. So protecting new plant varieties or plant derived innovations can be complex but comprehensive.

For instance, patents can be used to protect a broader range of subject matter such as the plant per se or various plant parts including reproductive material (eg seeds, whole cuttings, cells or protoplasts), plant products (eg fruit, flowers, oils, pharmaceuticals), plant material used in industrial processes (eg cell lines) and methods of plant breeding (both traditional and other marker assisted selection or embryo rescue).

PBRs can be used to protect the propagating material of the plant variety, the variety name, dependent varieties and essentially derived varieties. PBRs can also potentially be used to effectively extend the monopoly of the plant per se, beyond the normal patent term of 20 years, given that the term for a PBR is 20 years (or 25 years in the case of trees and vines) from the date of grant of the PBR.

Our focus is on providing a strategic approach for our clients to maximise potential protection of new plant varieties or plant derived innovations, under both regimes in Australia and overseas that balances cost with commercial value.

This can involve determining whether either or both regimes would be suitable for protecting the plant innovation and also what commercially valuable products and/or processes can be validity protected, in order to build an effective patent and PBR portfolio for our clients, in key agricultural markets.

We can provide specialist drafting of patent specifications directed to a new plant variety or plant-related invention, assist with compliance with micro-organism or plant material deposit requirements, and filing and examination of plant-related patent applications in Australia and New Zealand and through our agent network in other countries. We can also assist with filing Plant Breeder’s Rights applications and working closely with the Qualified Person necessary to obtain the grant of a Plant Breeder’s Right.

Our clients range from leading multinational agricultural companies to Australian agricultural R&D corporations and Universities.

FPA Patent Attorneys technical range of expertise in the Plant area includes:

  • Plant breeding
  • Genotyping
  • Transgenic plants
  • Plant-based products and processes
  • Plant Breeder’s Rights

FPA Patent Attorneys - our expertise in action

We have represented an overseas growers cooperative specialising in the breeding of new consumable plant varieties. Our role was to coordinate the Plant Breeder’s Rights application process for multiple new plant varieties through to grant, including navigating the requirements for importation of plant material into Australia.

We have also coordinated a substantive patent portfolio covering genetic markers of various crop species having desirable traits for the Australian climate for a relatively large local R&D organisation, including prosecuting patents in countries that are specific to the agriculture sector with particular focus on South American countries.

We have particular expertise in protecting plantation pharmaceutical production using intellectual property rights.