Plant Breeder’s Rights

11 Oct Plant Breeder’s Rights

Plant Breeder’s Rights 

The agricultural sector of plant breeding is ever-evolving, with more and more technologies being developed towards creating superior varieties of commercially viable plants. To accommodate the fears that breeders have in terms of protection of their new varieties, domestic and international communities have developed a unified method of Intellectual Property protection called ‘Plant Breeder’s Rights’ (PBR). PBR acknowledges the ownership of new plant varieties through a person’s intellectual efforts, similar to the way that a product, song or novel is acknowledged by copyright.

Intellectual property protection by way of PBR has only recently been introduced, the first piece of legislation being the Plant Variety Rights Act 1987 (Cth)[1]. This Act[2] was then replaced by the Plant Breeder’s Rights Act 1994 (Cth)[3] (“the PBR Act”) in order to harmonise with the International Union for the Protection of New Varieties of Plants (UPOV). The UPOV convention is a multilateral international agreement which aims to encourage breeders to develop new varieties of plants through Intellectual Property protection[4]. These rights are regulated by the Plant Breeder’s Rights Office (PBRO) located within the IP Australia office[5] in the ACT.

The PBR Act[6] grants a specific form of intellectual property called Plant Breeder’s Rights, protecting plants, trees, shrubs, vines, fruit, vegetable and flowers[7]. The purpose of this Act as outlined by the Second Reading Speech is to enable breeders to gain proprietary rights for new varieties of plants and fungi they develop[8].

Section 11 of the Plant Breeder’s Rights Act 1994 (Cth)[9] provides the holder the exclusive rights to do, or to license another person to do, the following[10];

• produce or reproduce the material,
• condition the material for propagation,
• offer the material for sale,
• sell the material,
• import the material,
• export the material and
• stock the material for any of the purposes described above.

Since PBR are a form of personal property, the rights are able to be assigned and transmitted through legal agreements. In instances where the owner of the PBR does not wish to personally exploit their rights, they may enter a contractual agreement with a licensee, transferring the rights from the owner to the third party[11]. A licensee may be any entity which has been authorised by the holder in an agreement.

The monopolisation of PBR occurs through a chain of licensing, where holders make agreements with a licensee, delegating certain contractual responsibilities. Depending on the type of consent and rights given by the holder, the licensee holds the discretion to make sub-agreements with other entities, all of which usually need to be authorised by the holder. It is often in the holder’s best interests to enter into individual licenses with a number of agents or growers[12]. The obligations of the entered agreements are to be clearly understood by all parties involved to avoid breaches or disputes. If the obligations or rights are infringed, it can result in injunction, an account of profits or damages, and civil and criminal penalties. Usually, sub-licenses with growers, permit the licensee access to the grower’s property and the right to remove the trees in the event of default or if the sub license to the grower comes to an end.

A common scenario in the chain of licensing being infringed is seen in Zee Sweet Pty Ltd v Magnom Orchards Pty Ltd & Others [2003] VSC 486[13]. The Applicant held the exclusive license to produce and sell particular peaches and nectarines. Within their license, they granted a sublicense to Magnom Orchards, the Defendant, to grow and sell their fruit varieties. However, the Defendant infringed this agreement and therefore had to pay damages, court costs and have the fruit trees destroyed. The licensing structure is designed to permit growers, who pay the holder of the PBR a royalty, to maximise the sale price of the product. To do this, license agreements usually require certain quality standards to be met and require sale of the product through a central marketing body.

Harris and Company acts for a number of companies involved in the exploitation of Plant Breeder’s Rights and can advise on all aspects of the agreements necessary to properly structure licensing and sub licensing arrangements. If you would like any further information regarding Plant Breeder’s Rights, please contact Ian Smith.

[1] Plant Variety Rights Act 1987 (Cth)

[2] Ibid.

[3] Plant Breeder’s Rights Act 1994 (Cth)

[4] Phil Evans and Thomas Haines, ‘Plant Breeder’s Rights’ (Research Article, 2007) 2 <http://classic.austlii.edu.au/au/journals/LegIssBus/2007/1.pdf>

[5] World Intellectual Property Organisation , ‘Australia Industrial Property Offices’, Contact Information (Webpage) < https://www.wipo.int/directory/en/contact.jsp?country_id=10&type=ADMIN_IP >

[6] Plant Breeder’s Rights Act 1994 (Cth)

[7] Phil Evans and Thomas Haines, ‘Plant Breeder’s Rights’ (Research Article, 2007) 2 <http://classic.austlii.edu.au/au/journals/LegIssBus/2007/1.pdf>

[8] Commonwealth, Parliamentary Debates, House of Representatives, 24 August 1994, 157 (Frank Walker, minister for administrative services).

[9] Plant Breeder’s Rights Act 1994 (Cth) s 11.

[10] Ibid s 11.

[11] Phil Evans and Thomas Haines, ‘Plant Breeder’s Rights’ (Research Article, 2007) 8 <http://classic.austlii.edu.au/au/journals/LegIssBus/2007/1.pdf>

[12] Phil Evans and Thomas Haines, ‘Plant Breeder’s Rights’ (Research Article, 2007) 2 <http://classic.austlii.edu.au/au/journals/LegIssBus/2007/1.pdf>

[13] Zee Sweet Pty Ltd v Magnom Orchards Pty Ltd & Others [2003] VSC 486