What to consider before applying for a plant breeder's right

Make sure it's the right IP for your needs

A PBR gives you exclusive commercial rights to the new plant variety you've developed.

However, it might not be the only IP protection you need or, it might not be the right IP. You can also consider:

• A trade mark as a brand for your enterprise, or for a series of varieties. Note that a trade mark would be in addition to your PBR name since a variety name can't be used as a trade mark, and a trade mark (a brand) can't be used as a variety name. A trade mark can't be used for a single variety
• A patent if you've created a plant with new features or functions. For example, it's possible to have a patent for a plant where you've bred, mutated or genetically engineered the plant to contain a gene for disease resistance. The gene may be incorporated into plants of a variety, which can then also be protected by a PBR
• A trade secret, which is another way of protecting your new variety by simply keeping the parentage of your hybrid, or your propagating technique, secret. This could be an option if no-one else knows how to produce your variety and you think it's unlikely that someone else will also breed the same one.

Different types of IP

Engage a Qualified Person to assist

As part of the application process, you must engage the services of an authorised expert — known as a Qualified Person (QP). They perform crucial roles in the application process that will ensure the technical rigour needed to obtain a strong PBR.

Your QP — who's an expert in the kind of plant you're trying to protect — will work with us to decide the best way to demonstrate your variety is distinct, uniform and stable (DUS), supervise the growing trial and certify the results once your growing trial is completed.

Role of a qualified person

If you're unsure, submit the first part of the application

The application process is split into two parts:

• Part 1 - Once accepted, gives you 12 months of provisional protection

• Part 2 - Once granted, gives you full protection.

If you aren't sure if you want to go ahead with the full process, we recommend you just submit application part 1.

If successfully accepted, application part 1 provides:

• Provisional protection against infringement — meaning you're considered the grantee, however, you won't be able to take court action for infringement until the variety is granted full PBR protection

• An initial assessment of whether your variety is likely to meet the criteria for registration

• Time to make plans for commercialisation and to test the market to see if it's commercially viable.

How to apply

Choose a name for your variety

You'll have to include the name of your new variety in your application. If you aren't sure of a name yet, you can assign a temporary name until the second part of the process.

There are rules for plant namessuch as how long the name is allowed to be and which punctuation marks you're allowed to use.

The proposed name must be:

• Unique and not able to be confused with other variety names in spelling or when pronounced
• Not already in use as a trade mark in respect of live plants, plant cells and plant tissues.

This means you'll need to search existing PBRs and trade marks to make sure that your chosen name hasn't already been protected.

We'd recommend that you don't start using the name until it's been accepted by us.

You'll need to run a growing trial to meet distinct, uniform and stable criteria 

You'll need to set up and run a growing trial once part 1 of your application has been accepted. The aim of the trial is to show that you do indeed have a new variety that's distinct, uniform and stable, according to our standards.

Most trials take between 3 and 12 months, however some can take up to seven years or longer depending on the species you need to grow.

some circumstances, you may not have to run a trial, but only where we're satisfied that a suitable trial has already been run by an authorised organisation elsewhere in the world. If their data is available to us, you may not have to repeat their work.

Growing trials