3 things you really need to know about plant breeders’ rights

Trying to work out what you can or can’t do when growing new plant breeds can be a challenge. Alder IP looks at how plant breeders’ rights work.

As a cultivator, orchardist or any other professional involved in breeding or selling plants, coming up with new varieties that have a unique taste or distinctive smell can give you an industry advantage. However, trying to wrap your head around the myriad copyright laws constituting plant 'intellectual property' is baffling and can seem ridiculous. It's just a plant, isn't it? 

For many Australian businesses, plants are a livelihood and can be worth millions of dollars in aiding medical research or food production. It's an important area of IP law to understand if you don't want to be supplanted by more compliant competition. Alder IP set out to use our years of intellectual property experience to reveal what you really need to know about plant breeders' rights (PBR) laws.

Understanding what plant breeders' rights are

IP Australia defines PBR as a legitimate form of intellectual property. Breeders are granted exclusive access to breed new and innovative varieties of plants. When this intellectual property right lapses, other breeders will have access to dozens of new varieties, creating ever-expanding sub-variety possibilities. Plant breeders' rights mostly cover new kinds of plants, but also protect certain cases of essentially derived (varieties that do not bear any significant differences to the original) flora and other special cases.

Plant breeders need to be aware of the complex rules surrounding breeding rights in Australia.Plant breeders need to be aware of the complex rules surrounding breeding rights in Australia.

Three things you really need to know about plant breeders' rights

Cutting through the thickets of information, there are a couple of essential details you need to know about gaining protection for your unique plant variety:

  • Although a new kind of greenery is usually protected by PBR, you can also obtain trade mark or patent protection too. For example, you could trade mark a brand identify common to all of your plant range, in order to distinguish them from competitors'. Alternatively, patenting a certain plant gene that has medical use would be an effective way to protect your research.
  • In order to obtain PBR, you need to go through growing trials (or DUS trials) – this is to make sure that your new variety is Distinct in some way, Uniform in its characteristics and Stable in its parts. These DUS parameters establish if you actually have a truly new and unique plant. 
  • If you have conducted research overseas and developed new flora there, you can still apply for PBR and other IP protection in Australia. However, certain stringent guidelines need to be met, including lodging any and all other IP applications overseas and ensuring all common knowledge varieties in Australia are considered in your DUS testing. 

Seeking the help of a legal professional

Trying to register a new plant breed can be tricky without the help of an experienced lawyer. At Alder IP, our dedicated team are read to help with any case – just contact us today to find out more.