Although the Plant Breeder’s Right system provides protection of propagating or reproductive material of a new plant variety, this can often provide insufficient protection to the plant breeder. Fortunately, Australia and New Zealand also permit plant breeders to obtain protection under the Patent system which allows for the protection of key plant components including propagating material, and also cells, genetic sequences, plants per se and ways of generating and using them.

Provided below is a summary of the key elements of both the PBR/PVR and patent systems in both jurisdictions relevant to the protection of plant varieties.

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 Patentable subject matter

In Europe a “plant variety” is specifically excluded from patentable subject matter under Article 53(b) EPC.  The European definition of a “plant variety” conforms to the UPOV definition (see EPO G 0001/98).

Similar to the US, there is no such exclusion provided in the patent law in either Australia or New Zealand – plant varieties are patentable so long as they meet the requirement for patentability. Generally, a plant variety is patentable if there is a technical intervention of man which has resulted in an artificial state of affairs which does not occur in nature to produce a plant that is novel and commercially useful.

The requirements for patentability of micro-organisms in Australia were set out in Ranks Hovis McDougall Ltd application (1976) 46 AOJP 3915. In this decision, the hearing officer decided:

  • no objection can be taken to a claim to a new organism on the ground that it is something living;
  • any new variants claimed must have improved or altered useful properties and not merely have changed morphological characteristics which have no effect on the working of the organism;
  • naturally occurring micro-organisms per se are not patentable as they represent a discovery and not an invention; and
  • a claim to a pure culture of the micro-organism would satisfy the requirement for technical intervention.

Although the decision deals with micro-organisms, the Australian Patent Office applies these principles when considering all life-forms including plants.

Furthermore, biological processes for the generation of plants are also considered to be patentable subject matter in both Australia and New Zealand.  Given the G001/08 and G002/07 decisions (also known as the Tomato and Broccoli cases), the position in Australia and New Zealand appears to be in contradistinction to the current European position (which remains to be determined).