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A Guide to Plant Breeder’s Rights in Australia and New Zealand: Part 3

In part 1 of this guide, we outlined some basic considerations for Applicants who may be seeking to apply for Plant Breeder’s Rights (PBRs) in Australia and in New Zealand.

Part 2 of this guide continued on from the above and provided information on how to navigate the application process for PBRs in Australia and in New Zealand.

In the present third part of this guide, we discuss some other considerations that are relevant to the international protection of plant varieties, which centers around the UPOV system.

UPOV system and international plant protection

The International Convention for the Protection of New Varieties of Plants (UPOV Convention) established the International Union for the Protection of New Varieties of Plants (UPOV system) for plant variety protection, which is a multilateral international agreement providing recognition of the rights of plant breeders.

A number of countries are signatories to the UPOV system, including Australia, New Zealand, the United States, Canada, Europe, United Kingdom, Japan, China, Singapore, amongst others. As of 3 November 2021, there are 78 members of UPOV, which includes two intergovernmental organisations and 76 member states.

An Australian plant breeder therefore has the opportunity to register the plant variety in other member states, whilst relying on the Australian application, if the application is made within 12 months of filing the Australian application. Likewise, an overseas Applicant can claim priority in an Australian PBR application if the application is filed within 12 months of the foreign filing in the member UPOV country.

It is important to note that plant variety rights in the UK, which is administered by the Animal and Plant Health Agency (APHA), is separate from plant variety rights in Europe, which is administered by the Community Plant Variety Office (CPVO). Plant variety rights in both the UK and in the EU extend to protect all varieties of plant species. Rights sought in Europe extend across a number of European countries, and therefore European rights typically offer better value to the Applicant of the PBR, compared to national rights, especially if rights in the European market are commercially desirable. Following Brexit, holders of a unitary European Community Plant Variety right, which were granted prior to the Brexit transition period of 31 December 2020, would have become holders of a UK plant variety right. From 1 January 2021, plant variety rights granted by the CPVO do not cover the UK (including Northern Ireland), thus separate protection must be sought if breeders require plant variety protection in the UK. However, the test for qualifying for a plant variety right in Europe and in the UK is generally quite similar, in that the plant variety must be novel and pass the “Distinct, Uniform and Stability test”, and in addition must not have been sold or disposed of with the Applicant’s consent within the last year of the date of application, or the last four years outside of the region (outside the UK for UK plant variety rights or, outside the EU for European plant variety rights), or in the last six years in the case of trees and vines. In fact, the eligibility requirements for plant variety rights in most UPOV member countries are similar to that as outlined above for the UK and the EU, although there are a few exceptions, which emphasise the need to seek international registration as early as possible.

Whilst UPOV provides a system for the international recognition of PBRs, there are some differences between different countries in terms of the rights that are provided and the process by which plant breeders protection may be sought. For example, in Japan the duration of plant protection is 30 years for trees, and 25 years for other plant varieties. Whereas, in Europe and in the UK, trees, vines and potatoes are eligible to receive up to 30 years of protection, and up to 25 years for all other plant varieties. Noticeably, protection in the US is offered for the same duration of time as in Australia, which is also applicable to the same plant varieties as in Australia (20 for plant varieties, and 25 years for trees and vines).

If you would like further information on the international protection of new plant varieties, please do not hesitate to contact our team, who will be pleased to answer any questions you may have. In the meantime, we will be publishing our fourth part of this article series shortly, which will cover the support, sufficiency and best method requirements that need to be satisfied in order for a new plant variety to receive protection.