Expand essential derived variety declarations

Issue summary

Under current legislation, if the grantee of a Plant Breeder's Rights (PBR) variety (the "initial variety") believes another breeder has used their "initial variety" to breed another variety (the "second variety") then they can make a claim of EDV ('essentially derived variety') provided the "second variety" is granted Plant Breeder's Rights. The breeder of the initial variety then has a say in how the second variety is marketed.

The breeder of the "second variety" needs only to not apply for Plant Breeder's Rights to avoid such action.

The Productivity Commission in its 2016 report into Australia's IP arrangements, and the former Advisory Council on Intellectual Property in its 2010 review of Plant Breeder's Rights enforcement considered that this was a loophole that should be addressed to improve incentives for breeding novel varieties. The government accepted the recommendation in both reports. The proposed amendment would remove the requirement for the "second variety" to be protected by Plant Breeder's Rights.

Comments

This item is included in the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 which received Royal Assent on 24 August.