Protecting Plant Varieties In Australia And New Zealand

by FPA Patent Attorneys

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.








Signatory to Budapest Treaty


(But accepts deposits)


(except Innovation patents expressly excludes plants and biological processes for their generation)

Patentable subject matter

[see text below]






Not exploited

Acceptable denomination or variety name






Acceptable denomination or variety name

Exploited in AU: 1yr

Exploited Overseas: 4yrs (except 6years for “trees and vines”)

Grace period

Sale  in NZ: 1yr

Sale Overseas: 4yrs (except 6years for “woody plants”)

20 years

(25 trees and vines)


20 years

(23 years for woody plants)

Excludes bacteria, bacteroids, mycoplasms, viruses, viroids, bacteriophages

Includes fungi and algae

Plant definition

Excludes algae, bacteria

Includes fungi

In relation to propagating material: produce or reproduce the material; condition the material for the purpose of propagation; offer the material for sale, sell, import, export the material; stock the material for these purposes.

Granted right

Produce for sale and to sell reproductive material of the variety and authorise others to do the same;

Import the material for these purposes


Party to 1991 revision

Member of UPOV


Party to 1978 revision

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).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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