This article provides brief comments on common issues that arise in the application, maintenance and enforcement of Plant Breeders’ Rights.
Plant Breeders’ Rights (PBR) legislation in Australia does not prescribe how the commercialisation of PBR varieties should occur, and in general, breeders seek to commercialise their varieties through contractual arrangements. For example, it is common practice for PBR owners to set the terms under which they allow a grower to use PBR protected material by way of a non- propagation agreement. These agreements may also set out the terms of any royalties payable in respect of the propagation of the protected variety.
Within the industry however, there are many different forms of non-propagation agreements, many of which are poorly drafted, or standard contracts which have not been updated for many years. Confusion as to the terms of any agreement can be a source of dispute between growers and PBR owners, with reports suggesting that disregard for the terms of non-propagation agreements is widespread in some industries.
Whilst disputes are not frequent within the industry, breaches of the agreement and/or infringement of a granted PBR can have significant consequences. One example of this is the decision in Zee Sweet Pty Ltd v Magnom Orchards Pty Ltd  VSC 486, in which the Australian Federal Court ordered the respondent to destroy all its significant number of trees of the protected variety as a result of a breach of the Grower Agreement.
The Zee Sweet case continues to be a reminder that parties should understand their rights and obligations of any PBR related contracts. For breeders, it is important to regularly audit contractual arrangements to ensure they remain in force and relevant to their business. For growers, it is crucial that they properly understand the terms of any agreement or conditions by which they may grow protected varieties.
Genetic resource centre
Under PBR legislation in Australia, propagating material of the variety must be deposited at a Genetic Resource Centre (GRC), where germplasm material may be maintained. This is so the variety can be preserved for breeding and other testing.
Plant breeder’s rights are granted in a new plant variety. Unlike patent rights, validity and infringement are not assessed on the basis of the detailed description of the variety. This is because a variety’s phenotype will be affected by its environment, and as a consequence, a variety’s description is likely to differ between locations and time.
Whilst a variety’s distinctive essential characteristics should be reproducible in the same environment used for the distinctiveness, uniformity and stability trial carried out in support of the application and set out in the detailed description, it is important that access to a clear source of the protected variety be available in order to replicate or carry our new trials.
Accordingly, it is important for breeders to ensure that the nominated GRC is properly maintained, particularly during any changes to the business during the term of the PBR and where the GRC is an area or part of a nursery rather than a formal GRC.
Entitlement to make PBR application
Legal ownership of, or access to, the source population of a variety is not an eligibility requirement for PBR protection of the new variety, although legal issues as to the ownership of a source population may arise separately. It remains the case however, that only a breeder of a plant variety is entitled to make any application for the grant of a PBR in the variety.
Although it is common practice for PBR applications to be made in the name of the legal entity carrying on the nursery business, the entity will not automatically be considered the breeder under the PBR legislation.
The breeder can be an incorporated or unincorporated body, but only where the variety was bred by person in the course of performing duties or functions as a member or employee of the body. Whist this will cover most situations that commonly arise, PBR owners should ensure that they conduct regular reviews of contractual or other arrangements in place covering the development of new varieties to ensure that there is a proper basis for a claim to ownership.