Clarify exhaustion of Plant Breeder's Rights rights provisions

Issue summary

In the former Advisory Council on Intellectual Property's (ACIP's) 2010 review of Plant Breeder's Rights (PBR) Enforcement, many stakeholders, particularly the breeders of agricultural varieties, were uncertain about the exhaustion of rights under s23 of the Plant Breeder's Rights Act. ACIP considered that the amount of confusion in the industry over exhaustion of Plant Breeder's Rights is significant enough to create inefficiencies in the industry.

To address this, ACIP recommended that the Plant Breeder's Rights Act be amended to make it clear that growers are able to grow and sell crop G0 (seed) & G1 (plant produced from the seed) of a plant variety without the authorisation of the Plant Breeder's Rights owner. Growers would still require authorisation to grow and sell crops G2+ (i.e. plants propagated from the G1 plant). The government accepted this recommendation in June 2011.

History

• On hold 4 September 2017
• Reviewed August 2020
• Identified for action 24 June 2021
• Policy development 20 December 2022 

Comments

Issue has been expanded to include other issues around exhaustion raised by the PBR Consultation Group. No longer restricted to G0 and G1 material.

In 2022 IP Australia commissioned research from the University of Queensland (UQ) on exhaustion in the PBR Act. The independent report made several recommendations, including that the Australian Government clarify the exhaustion doctrine as articulated by the High Court in Calidad Pty Ltd v Seiko Epson Corporation applies to the Plant Breeder’s Rights Act 1994. 

IP Australia is currently considering the recommendations made by UQ. The Government hasn't taken any decision on possible PBR reform. 
   
You can give us feedback on the recommendations via our consultation hub .