Earlier in this article series, we discussed the basics behind Plant Breeder’s Rights (PBRs) and have discussed some considerations that should be taken into account when seeking to apply for PBRs in Australia and in New Zealand (A Guide to Plant Breeder’s Rights in Australia and New Zealand: Part 1 – Michael Buck I.P. (mbip.com.au)). In the second part of this series, we delve into some detail concerning the application process itself and what this entails.
In Australia, as part of the application process for a PBR, a specimen must be submitted to the Australian Cultivar Registration Authority (ACRA), and a Confirmation of Species submission form needs to be submitted. The process is similar in New Zealand, in that a seed sample, and germination test certificate no more than 3 months old, must be supplied alongside the PBR application.
There are two parts to the PBR application in Australia, and the timeframe is typically around 2.5 years from the time of filing the application to grant.
Part 1 of the application process involves completing an application form, nominating a Qualified Person, filing photographs of your plant variety, outlining an indication of how the variety is expected to meet the requirements of distinctiveness, uniformity and stability, providing details of the proposed variety name, as well as providing information on any priority claims, if any. Once this has been completed, within 8 weeks, the Examiner will advise whether or not the application can proceed to acceptance. If there are issues, an examination report will be raised to address any formality issues.
Once the application has been accepted, an examination fee must be paid within 12 months. With respect to the second part of the application process, this involves liaising with your nominated Qualified Person to conduct a growing trial, in which the plant variety is tested on whether it satisfies the criteria for distinct, uniform and stable characteristics. Upon completion of the growing trial, the Qualified Person will submit a detailed description of the plant variety, based on the results of the growing trial and/or information obtained from any certified overseas test reports, for publication in the Plant Varieties Journal. An important difference between PBR detailed descriptions and that of patent specifications is that the detailed descriptions of the new plant variety is not used for the assessment of infringement, since it is understood that a plant’s phenotype is likely to be influenced by its surrounding environment, which will differ depending on the location and time at which the growing trial was performed.
An Examiner will also examine the growing trial and application, and if satisfied, and there is no objection to the application within a 6 month period, the application can then proceed to grant.
An objection may be raised by a third party at any time after acceptance of the PBR application, whilst the plant variety is under provisional protection, up until the end of the six-month public notice period, during the second part of the application process. Objections could be based on arguments that the plant variety in question does not satisfy the novelty requirements, or that it is not distinct enough from other similar varieties, or even if ownership of the plant variety is unclear.
ii) New Zealand
The application process in New Zealand is similar, in that the PBR application becomes accepted once it passes the initial formalities check. The Examiner then carries out a preliminary examination, which includes outlining the requirements for testing the distinct, uniform and stable characteristics. During preliminary examination, further information and/or plant material may be requested. As discussed above, the PVRO is largely involved in managing the growing trial and the evaluation of varieties. However, if for some reason the crops in in question cannot be tested by the PVRO, responsibility then falls on the Applicant to demonstrate that the variety is distinct, uniform and stable. If that is the case, then the Applicant would also be required to provide an accompanying statement to confirm and outline how the variety satisfies these requirements, as well as to supply a detailed description of the variety, which would otherwise have been the responsibility of the Qualified Person in Australia.
Following preliminary examination in New Zealand, the Examiner conducts a final examination that focuses on the technical aspects of the application and advises the Commissioner as to whether the plant variety is eligible for grant of a PBR. If the Commissioner is not satisfied that the application meets the criteria for grant of a PBR, the application undergoes a further round of examination. In New Zealand, any third party can raise an objection at any time after acceptance of the PBR application, and within 3 months after the date of publication in the Journal after grant, if it is believed that the granted application is not eligible for a PBR.
Depositing plant material
Similar to the requirements for depositing microorganisms for life science patent applications, under the Australian Plant Breeders Rights Act, it is a requirement to deposit propagating material of the plant variety, at a Genetic Resource Centre (GRC) so that the material can be preserved and maintained for the purposes of breeding and other forms of testing. A number of these plant genetic resource centres have been established across Australia as early as the 1980s. It is important for breeders to ensure that their propagative material is properly maintained for the duration of their granted PBR, particularly if there are business-related changes at the nominated GRC.
Seed samples must also be provided in New Zealand, as part of the application process.
If you have any questions in relation to the above, please do not hesitate to get in contact with our team. We will be publishing part 3 of the guide shortly, which will cover how plant varieties can be protected at an international level. However, in the meantime, we would be happy to assist with any questions you may have.