This law article on ‘Plant Breeder’s Right in Australia’ was written by Legal Upanishad.
Table of Contents
- 1 INTRODUCTION
- 2 HISTORICAL EVOLUTION OF PLANT BREEDER’S RIGHT
- 3 WHAT CAN BE TERMED AS PLANT BREEDER’S RIGHTS?
- 4 Purpose of Plant Breeder’s Rights
- 5 PLANT BREEDER’S RIGHTS ACT, 1994
- 6 Key varieties that can be protected
- 7 The extent of the Plant Breeder’s Rights
- 8 Application Procedure
- 9 Infringement of the rights
- 10 JUDICIAL DECISIONS
- 11 Buchanan Turf Supplies Pty Ltd v. Registrar of Trademarks,  FCA 756
- 12 Cultivaust Pty Ltd v. Grain Pool Pty Ltd,  FCA 638
- 13 CONCLUSION
- 14 REFERENCES
The article highlights the Australian legislation over the rights of plant breeders. The article comprises of the historical evolution of the plant breeders rights and the laws under the Plant Breeders Right Act, 1994 with relevant judicial pronouncements.
Plant breeding is an important mechanism to meet the challenge of producing and providing the best quality of plants worldwide. With agricultural advancement across the globe and sharing of adequate knowledge, it has become a necessity to protect the rights of plant breeders to avoid the unauthorized use of the newly discovered plant varieties.
HISTORICAL EVOLUTION OF PLANT BREEDER’S RIGHT
The Plant Breeder’s rights were initially developed as a substitute to the patents granted to the new species of plants. The rights were initially recognized by the International Convention for the protection of New Varieties of Plants, UPOV, 1961.
The UPOV Convention was adopted in the year 1961 and was the only treaty concerned with the IP protection of the original and new plant varieties. Due to this, it was the prime function of UPOV to encourage the social, economic and political growth of these varieties. The Convention got revised in the years 1972, 1978 and 1991 with 1, 12 and 57 contracting states respectively. Currently, it has 75 members as a part of this convention.
Further, A. 27(3) of the TRIPS Agreement obliges the World Trade Organizations members to have the IP protection protocols for the original and new plant varieties in their individual country either through patents or through sui generis legislation.
WHAT CAN BE TERMED AS PLANT BREEDER’S RIGHTS?
The plant breeder’s rights can be said as absolute commercial rights vested with the owner of the registered plant species. These IP rights give plant breeders the power to exercise a commercial monopoly in the market for a certain time span.
Further, the rights give plant breeders the authority to either produce or reproduce any material, condition such material for the purpose of propagation, offer such material for commercial sale, selling, import and export or stock the material for any desirable purpose.
In Australia, the plant breeder’s rights are protected under Plant Breeder’s Rights Act, 1994.
Purpose of Plant Breeder’s Rights
The prime objective of Plant Breeder’s Rights is to initialize the growth and development of the new plant species through sui generis protection. This sui generis protection though imposes certain exemptions upon the plant breeders but this led to the increase in the yielding of crucial crops, growth of farmers income thereby consequenty encouraging rural advancement.
PLANT BREEDER’S RIGHTS ACT, 1994
Australia is a contracting member of the UPOV Convention, 1991 and based upon the convention, the Plant Breeder’s Rights Act, 1994 was enforced for the variety protection. However, the protection was challenged questioning its constitutional validity in the case of Grain Pool of Western Australia v. Common Wealth  HCA 14, but the act was held constitutional.
The Plant Breeder’s Rights Act, 1994 provides for the provisions of plant breeder’s rights and their protection, application of the rights and its grant and revocation, enforcement of the rights.
Key varieties that can be protected
Under the act, only new and original exploited varieties can get registered and protected. The act protects and registers new varieties, new exploited varieties, essentially derived varieties, dependent varieties, further breeding, harvested material and search existing varieties.
The extent of the Plant Breeder’s Rights
The protection of the plant breeder’s rights includes the material for the propagation of the protected plant species. It also includes the material of propagation of the dependent species varieties and the essentially derived species. Further, the rights extend to the harvested materials and the products of such harvested materials in case if the holder of plant breeder’s rights had no opportunity to exercise the rights over the propagated materials.
Exceptions to the Plant Breeder’s Rights
Under certain circumstances, the rights of the plant breeder’s do not stretch to the propagating materials of the protected plant species. According to sec 16 and sec 17, there are certain exceptions for the rights of the plant breeders which includes such acts and circumstances which though seems to be infringement but is not the same.
According to sec 16 of the Plant Breeder’s Rights Act, 1961, the rights of the plant breeder’s does not get infringed with the acts such as:
- Private use of registered plant species for non-commercial and experimental purposes.
- The sale and utilization of the propagation materials of the protected plant varieties.
- Acts performed for breeding of the other plant varieties.
Further, according to section 17 of the Plant Breeder’s Rights Act, 1961, the rights of plant breeder’s does not get infringed under certain circumstances such as:
- Conditioning of the propagating material for reproductive purposes.
- The reproduction of the propagating material of the plant variety species.
Some other specifics which are covered under the act include:
- Prior limitation of sale: the sale with the breeder’s consent is for one year before applying for protection of the plant varieties in Australia. The overseas sale with the consent of the breeders is permitted up to 4 years in all varieties other than tree and grapevine for which it is 6 years
- The time of payment of the fees for protection
- Farm saved seed.
- Protection from transgenic species like fungi, algae etc.
In order to get the plant variety protection in Australia, the same is required to get verified through an administrative procedure which identifies and evaluates the originality of the varieties that whether it is meeting with the essential requirement for registration or not?
Under S.43 of the Plant Breeder’s Rights Act, 1994, a particular plant variety for which application has been made is registerable only if:
- If the variety is a breeder and is distinct.
- It is uniform including the variation which can be expected from its propagation.
- It is stable with an unchanged relevant characteristic after its continuous propagation.
- It has not been recently exploited.
Including the fulfilment of the above-mentioned criteria, the new variety shall also be named as according to S. 27 of the Plant Breeder’s Right Act, 1994.
Infringement of the rights
According to S.54 of the Act, 1994, where the plant breeder’s rights get violated with doing any act without the consent of the rights holder by any other person, the right holder can proceed to the court and the defendant to the case can counterclaim for the revocation of the rights on the ground that the variety is not new and facts exists which would refuse the grant of rights.
Apart from the civil action by the court to claim the damages for infringement, any intentional infringement of the rights of the plant breeders can attract the penalty of $50,000 for a particular person and $250,000 for a particular corporation.
Buchanan Turf Supplies Pty Ltd v. Registrar of Trademarks,  FCA 756
In this case, an application was made for the registration of mark “Sir Walter” with respect to turfgrass. At the time of making an application, the applicant was the plant breeder right holder for the “Sir Walter” variety for the buffalo grass. The objection upon application was raised. It was held by the court that the name “Sir Walter” can be apt for the naming of grass but it cannot be used as a trademark.
Cultivaust Pty Ltd v. Grain Pool Pty Ltd,  FCA 638
In this case, it was held by the court that the production levy, royalty and further conditions can also be imposed upon the harvested material when any farmer or the plant grower buys the propagation materials.
The discovery and introduction of a new variety of plants directly benefit the farmers and gardening community. Plant breeding is a technique that can lead to the development of new plant varieties thereby exploiting and enhancing the biodiversity of the world. Therefore, it is essential to encourage the protection of the rights of plant breeders and it is the responsibility of the plant breeders to improve the performance of the current agriculture and horticulture by introducing new species of plants which has been recognized by Australia.
- David Godden. (n.d.). The Plant Variety Rights in Australia. Research Gate. https://www.researchgate.net/publication/23945740_Plant_Variety_Rights_in_Australia_Some_Economic_Issues
- Katherine Cristian. (n.d.). The Plant Breeders Rights-an overview. Science Direct Topics. https://www.sciencedirect.com/topics/pharmacology-toxicology-and-pharmaceutical-science/plant-breeders-rights.
- The Plant Breeders Right. (n.d.). Business Queensland. https://www.business.qld.gov.au/running-business/ip/types/plant-breeders-rights.
- The UPOV authority. https://www.upov.int/.
- The Plant Breeders Right Act, 1994. https://www.legislation.gov.au/Details/C2019C00089.