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Australian Plant Breeder's Rights to be updated

By Richard Gough and Alanna Rennie, Baker McKenzie

On 24 October 2017, IP Australia released draft legislation to amend various intellectual property laws in Australia including Australia’s Plant Breeder’s Rights Act 1994 (Cth) (Act). The legislation is expected to be introduced into Parliament in early 2018. We outline the key changes.

1.    Essentially derived varieties

The draft legislation introduces a long awaited amendment to the essentially derived variety (EDV) concept. EDV extends the plant breeder’s right (PBR) over an initial variety to another variety if the second variety is deemed to be essentially derived from the initial variety. The amendment will strengthen the effectiveness of the EDV provisions in preventing breeders free-riding, particularly through the use of mutant varieties and in the context of GM technology developments.

Currently EDV declarations can only be made in respect of registered varieties. Breeders can circumvent the EDV concept by not applying for PBR protection in relation to a second variety. The draft legislation closes the loophole by extending EDV declarations to non-PBR protected varieties.

There will be a separate application process for EDV declarations in respect of non-PBR protected varieties, which parallels the process for PBR protected varieties. The key differences for making EDV declarations in respect of non-PBR protected varieties are:

  • the applicant must establish that the variety is an EDV on the balance of probabilities (rather than the lower prima facie standard applied to PBR-protected varieties)

  • the applicant must prove that the second variety meets the PBR registration criteria