Update - Protecting Plant Varieties In Australia And New Zealand

by FPA Patent Attorneys
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Recently we provided a summary of key elements of protecting plant varieties in Australia and New Zealand1.  In this summary we highlighted that plant breeders could seek dual protection under both Patents and Plant Breeder’s rights in both jurisdictions. This will now change in New Zealand.

Similarly to Europe, the new Patents Act 2013 in New Zealand now explicitly excludes plant varieties from patentable subject matter. The new act defines a plant variety by a cross reference to corresponding legislation – in this instance, the New Zealand Plant Variety Rights Act 1987- under which protection can still be sought.   

The New Zealand Patents Act 2013 is expected to come into force in the second half of 2014.

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


AUSTRALIA

 

NEW ZEALAND

PATENTS

Yes

Signatory to Budapest Treaty

No

(But requires a deposit)

Yes

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

Patentable subject matter

[see text below]

No

(“Plant varieties” are excluded)

PLANT VARIETIES

Distinct

Uniform

Stable

Not exploited

Acceptable denomination or variety name

Requirements

Distinct

Homogeneous

Stable

New

Acceptable denomination or variety name

Exploited in AU: 1yr

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

Grace period

Sale  in NZ: 1yr

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

20 years

(25 trees and vines)

Term

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

yes

EDRs

No

yes

Farmer’s Privilege

No

Yes

Party to 1991 revision

Member of UPOV

Yes

Party to 1978 revision

Yes (12 months)

Priority claim to earlier overseas applications

Yes (12 months)

Patentable subject matter

In Australia, plant varieties can be protected by a standard patent so long as the new plant variety meets the requirement for patentability. Generally, the requirements are met 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. 

Plant parts (eg seeds, flowers, fruit) or their cellular components, plant derived products (eg, oils) and biological processes for the generation of plants are all considered to be patentable subject matter for a standard patent in Australia. 

The Australian position is in contradistinction to the current European position, which specifically excludes plant varieties 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).  Furthermore, the recent Broccoli and Tomato cases clarified the circumstances under which traditional plant breeding methods are excluded from patentability as essentially biological processes (see G001/08 and G002/07 EPO EBA decisions).  

Given that the pending changes in New Zealand are in line with the European position, it is likely that there will still be scope to obtain protection for plant derived material and biological processes for their generation under the New Zealand Patents Act 2013 if it falls outside the definition of a Plant Variety

  1. Protecting plant varieties in Australia and New Zealand. Published 1 March 2013

 

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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