Growing your business without fear of IP theft by understanding the
Plant Breeders Rights Act 1994
The Plant Breeders Rights Act 1994 allows breeders of new plant varieties certain exclusive rights to sell and license others to sell those new plant varieties. It also provides a system of registration for new plant varieties.
A plant variety can include all fungi and algae but not bacteria, bacteroids, mycoplasmas, viruses, viroids and bacteriophages.
Brindabella Pride bred by Sylvia and John Gray
In relation to propagating material of the registered variety, successful applicants have exclusive rights to:
- produce or reproduce the material;
- condition the material for the purpose of propagation (conditioning includes cleaning, coating, sorting, packaging and grading);
- 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.
Extent of Plant Breeders Rights
If the Plant Breeders Rights holder has not been able to exercise their rights to the propagating material (eg the propagating material is exported, multiplied or sold without the authorisation of the grant holder) then the Plant Breeder’s Rights protects the propagating material of the variety of plant that is protected and any varieties that come from the original plant or are dependant on the original plant material.
The Plant Breeders Right extends to harvested materials and anything products from the harvested materials.
Exceptions to the Plant Breeders Rights
- The propagating material can be used privately, non-commercially, experimentally and for breeding of other plant varieties.
- As food, food ingredient or fuel for sale or use
- Seeds of protected varieties can be saved by farmers so that they are able to sow further crops. This is known as “farmer’s privilege” or “farm saved seed exemption” Unless, the crop is of a variety that farm saved seed is not exempt.
Enforcement
The Courts protect the Plant Breeders Rights to retrieve any losses incurred by infringements of the Plant Breeders Rights whether they were wilful or negligent. The Court may impose penalties, for example under S74 up to $90,000.00 (as at January 2016).
Term of Rights
Plant Breeder’s Rights are granted for a maximum term of 20 years, with the exception of 25 years for trees and vines, from the date of grant of the right. Once the Plant Breeders’ Rights have expired the variety may be freely used by the public.