Plant IP Protection in Australia: Patent, Plant Breeder’s Rights, or both?

The Australian agricultural industry is technology intensive, and new plant varieties developed in Australia or overseas are adopted quickly to meet yield, market, disease and climatic demands.
Importantly, in Australia, plant varieties, including genetically modified plants, can be protected under both the Australian Plant Breeder’s Rights Act 1994 (the “PBR Act”) and the Australian Patents Act 1990. By applying for protection under both systems, breeders can gain an extra layer of protection for their variety. In addition, protection under one system does not prevent a breeder from obtaining protection for their variety under the other.

Australian Patent protection for plant varieties

Plant breeders can also apply for protection under the Australian patents system. Patents legislation may provide a plant variety with protection for up to 20-years, from the date of filing of the patent application. The scope of protection afforded by the patents system is significantly broader than that afforded by PBR. Unlike PBR, a patent allows protection for the plant variety per se, as well as for:
• any part of the plant (including harvested material, genes, proteins, other molecules);
• use of the plant variety or its part(s);
• methods of breeding plants using the protected variety and resulting progeny; and
• products derived from the plant.
In order to be patentable, a plant variety must meet the usual requirements, including that:
• the plant be novel in an absolute sense, non-obvious, and obtained using a reproducible method;
• the plant exhibits improved or altered useful properties; and
• derivation of the plant involves the intervention of man.

CONCLUSION

In deciding what constitutes human intervention, the Australian Patent Office treats the choice of parents and their selective breeding, followed by selection of the most desirable offspring as being sufficient.
Where an aspect of the invention claimed cannot be performed without a sample of the germ plasm (which is most likely to be the case for a plant variety), a deposit at a Budapest Treaty Depository will most likely need to be made before the filing date of the patent application.