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Plant Breeder’s Rights and Plant Patents

In Australia, plant varieties can be protected under the Plant Breeder’s Rights Act and the Patents Act. We work with clients to determine the most commercially relevant type of protection and guide them through the process.

Plant Breeder’s Rights (PBR)

PBR provides protection for new plant varieties. A plant variety can include all fungi and algae but not bacteria, bacterioides, mycoplasmas, viruses, viroids and bacteriophages.

A plant variety is registrable if it:

  1. has a breeder;
  2. is distinct, uniform and stable (DUS); and
  3. has not been exploited or only has recently been exploited.

A plant variety is taken not to have been exploited if, at the date of lodging the application for PBR in the variety, plant material of the variety has not been sold by (or with the consent of) the breeder.  A sale is permitted in Australia for up to one year prior to applying for PBR and sale overseas is permitted for up to four years prior to making an application (six years for tree and vine varieties).

PBR provides the breeder with the right to exclude others from doing a number of different acts in relation to the propagating material of the variety, including:

  1. produce or reproduce the material;
  2. condition the material for the purpose of propagation;
  3. offer the material for sale;
  4. sell the material;
  5. import the material;
  6. export the material;
  7. stock the material for the purposes described above.

Propagating material in relation to a plant of a particular plant variety has been defined as ‘any part or product from which, whether alone or in combination with other parts or products of that plant, another plant with the same essential characteristics can be produced.’ For example, seed and cuttings.  The PBR can also extend to harvested material in certain circumstances.

PBR is granted for a maximum term of 20 years from the date of grant of the right (25 years for trees and vines). Once the PBR has expired the variety may be freely used by the public.

Plant Patents

The scope of protection afforded by the patents system is significantly broader than that afforded by PBR. Unlike PBR, a patent allows protection for the plant variety per se, as well as for:

  • any part of the plant (including harvested material, genes, proteins, other molecules);
  • use of the plant variety or its part(s);
  • methods of breeding plants using the protected variety and resulting progeny; and
  • products derived from the plant.

However, in order to be patentable, a plant variety must:

  • be novel, inventive and obtained using a reproducible method;
  • exhibit improved or altered useful properties; and
  • result from technical intervention (e.g., genetic modification or selective breeding).

Unlike PBR, a patent cannot be granted for a mere discovery of a new plant variety.

Combined protection

Protection of a variety under PBR does not prevent a breeder from also obtaining patent protection (and vice versa).  By applying for protection under both systems, breeders can gain an extra layer of protection for their variety.

Advantages of obtaining a patent:

  • can protect more than the variety, e.g., reproductive material (seeds, whole cuttings, cells or protoplasts), plant products (fruit, flowers, oils, pharmaceuticals), plant material used in industrial processes (cell lines) and methods of plant breeding (both traditional and other marker assisted selection or embryo rescue).

Advantages of obtaining PBR:

  • much cheaper to apply for and maintain than a patent;
  • quicker and easier application and examiantion;
  • protects the variety name; and
  • only needs to be distinct, uniform and stable from known varieties – does not need to be inventive.

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


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