Although the Plant Breeder’s Right system provides protection of propagating or reproductive material of a new plant variety, this can often provide insufficient protection to the plant breeder. Fortunately, Australia and New Zealand also permit plant breeders to obtain protection under the Patent system which allows for the protection of key plant components including propagating material, and also cells, genetic sequences, plants per se and ways of generating and using them.
Provided below is a summary of the key elements of both the PBR/PVR and patent systems in both jurisdictions relevant to the protection of plant varieties.
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AUSTRALIA |
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NEW ZEALAND |
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PATENTS |
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Yes |
Signatory to Budapest Treaty |
No (But accepts deposits) |
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Yes (except Innovation patents expressly excludes plants and biological processes for their generation) |
Patentable subject matter [see text below] |
Yes |
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PLANT VARIETIES |
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Distinct Uniform Stable Not exploited Acceptable denomination or variety name |
Requirements |
Distinct Homogeneous Stable New Acceptable denomination or variety name |
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Exploited in AU: 1yr Exploited Overseas: 4yrs (except 6years for “trees and vines”) |
Grace period |
Sale in NZ: 1yr Sale Overseas: 4yrs (except 6years for “woody plants”) |
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20 years (25 trees and vines) |
Term |
20 years (23 years for woody plants) |
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Excludes bacteria, bacteroids, mycoplasms, viruses, viroids, bacteriophages Includes fungi and algae |
Plant definition |
Excludes algae, bacteria Includes fungi |
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In relation to propagating material: produce or reproduce the material; condition the material for the purpose of propagation; offer the material for sale, sell, import, export the material; stock the material for these purposes. |
Granted right |
Produce for sale and to sell reproductive material of the variety and authorise others to do the same; Import the material for these purposes |
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Yes Party to 1991 revision |
Member of UPOV |
yes Party to 1978 revision |
In Europe a “plant variety” is specifically excluded from patentable subject matter under Article 53(b) EPC. The European definition of a “plant variety” conforms to the UPOV definition (see EPO G 0001/98).
Similar to the US, there is no such exclusion provided in the patent law in either Australia or New Zealand – plant varieties are patentable so long as they meet the requirement for patentability. Generally, a plant variety is patentable if there is a technical intervention of man which has resulted in an artificial state of affairs which does not occur in nature to produce a plant that is novel and commercially useful.
The requirements for patentability of micro-organisms in Australia were set out in Ranks Hovis McDougall Ltd application (1976) 46 AOJP 3915. In this decision, the hearing officer decided:
Although the decision deals with micro-organisms, the Australian Patent Office applies these principles when considering all life-forms including plants.
Furthermore, biological processes for the generation of plants are also considered to be patentable subject matter in both Australia and New Zealand. Given the G001/08 and G002/07 decisions (also known as the Tomato and Broccoli cases), the position in Australia and New Zealand appears to be in contradistinction to the current European position (which remains to be determined).
There has been an update to protecting plant varieties in Australia and New Zealand. Published 19 September 2013.
