The Federal Government has issued its response (PDF) to a review of Plant Breeder’s Rights (PBRs) prepared by its Advisory Council on Intellectual Property (ACIP) in January 2010.1 While the Government has accepted the majority of the 23 recommendations made by ACIP, it has not accepted a recommendation to introduce a new “purchase right” for plant groups specifically declared in the regulations. The ACIP report, proposed a number of recommendations principally directed towards increasing the development of new plant varieties through more effective enforcement of PBR's. Among the report’s recommendation which were accepted by the Government were the following:

Scope of Plant Breeder’s Rights

  1. Jurisdiction of the Federal Magistrates Court to be extended to include PBR matters.
  2. The Plant Breeder’s Rights Act 1994 (Cth) (‘the PBR Act’) to be amended to expressly provide that "harvested material" which is also propagating material will be considered as "propagating material" for the purposes of section 11 of the PBR Act (which section identifies the scope of the exclusive rights held by the grantee of PBR) even if it is not being used for that purpose.
  3. There be no change to the extended rights conferred under section 14 ("harvested material") and section 15 (products obtained from harvested material) of the PBR Act.

Farmer’s privilege

  1. There be no change to the "farm saved seed" exception under section 17 of the PBR Act.
  2. As part of IP Australia's education and awareness programs, focus be directed at raising industry awareness of the ability under section 17(2) of the PBR Act to have specific taxa excluded from the farm saved seed exception.
  3. PBR owners be encouraged to make clear to growers the conditions of sale of propagating material and their obligations in relation to future generations of it, including the need for growers to obtain authorisation from the PBR owner to sell crops grown from the farm saved seed.
  4. No change to be made to the farm saved seed exception (section 17) in relation to asexual reproduction.

Essentially derived varieties

  1. Enable declarations for "essentially derived varieties" (EDV) to be made in respect of any variety.
  2. The Plant Breeder's Rights Office to retain responsibility for EDV declarations and, where necessary, for advice to be sought from the existing Plant Breeder's Rights Advisory Committee ("PBRAC").

Exhaustion of rights

  1. No changes to be made to section 23 of the PBR Act covering exhaustion of rights.
  2. The PBR Act will be amended to ensure that growers are able to grow and sell crop G1 without the authorisation of the PBR owner but authorisation is required to grow and sell crops G2+.
  3. PBRAC has the existing capacity and powers to function as the "expert panel" recommended by ACIP, in particular to investigate technical and administrative matters arising under the PBR Act when these matters are referred by the Registrar to PBRAC. This should continue.

Enforcement of Plant Breeder’s Rights

  1. No changes to be made to the pre-grant enforcement provisions. The right to sue for infringement will (still) not arise until the final grant of PBR.
  2. IP Australia to consult with the Attorney-General's Department and the Department of Agriculture, Fisheries and Forestry and industry stakeholders regarding the feasibility of a cost-effective "Information Notice System" to enable PBR owners to obtain information concerning the source of plant material from suspected infringers.
  3. The PBR Act to be amended to include exemplary damages as relief in an infringement action.
  4. A new ADR resource to be established to facilitate the resolution of disputes involving intellectual property rights, including PBR. IP Australia not to be directly involved in providing the ADR services but will work with the relevant organisations to establish the ADR resource, including a register of accredited ADR providers with suitable expertise.

Criminal sanctions

  1. IP Australia to continue to liaise with the Australian Federal Police and Commonwealth Director of Public Prosecutions regarding the investigation and prosecution of criminal actions involving PBR. The Federal Government recognises that it is the IP rights owner who is largely responsible for the enforcement of their rights.

Other provisions

  1. No industry peak body or collecting agency be established at this time to represent breeders.
  2. IP Australia focus its PBR education and awareness efforts on the tertiary sector.

No action to be taken by the Federal Government at this time regarding the development of standard form contracts and licences.

The timetable for implementing the ACIP Recommendations accepted by the Federal Government is not yet known.

Davies Collison Cave have expertise in all aspects of plant breeder's rights, from filing and prosecuting PBR applications to commercialisation (e.g. licensing and growers agreements) and enforcement of PBR's. For further assistance or information please contact Darron Saltzman.