Article 2 of the 1978 UPOV Convention, that was in effect at the time of the Plant Variety Rights Act 1987 was introduced in Australia, allowed member countries to provide only one form of protection for the same botanical genus or species:

“(1) Each member State of the Union may recognise the right of the breeder provided for in this Convention by the grant either of a special title of protection or of a patent. Nevertheless, a member State of the Union whose national law admits protection under both these forms may provide only one of them for one and the same botanical genus or species.”

In Australia the Patents Act did not exclude plants, in contrast to patent legislation in Europe and Canada. In the USA the Plant Patent Act and the Plant Variety Protection Act were established specifically for new plant varieties, put the Patent Act did not specifically exclude plants as patentable subject matter.

Pressure from developers of new biotechnologies affecting plant varieties meant that the matter was under debate within UPOV and eventually resulted in the 1991 UPOV Convention accepting the possible co-existence of patents and Plant Breeder’s Rights legislation for the same genus and species.

In Australia the Government has established an independent body to advise it on issues such as these. The Advisory Council on Intellectual Property (ACIP) advises the Federal Minister on intellectual property matters and the strategic administration of IP Australia. The Council was established in 1994.

The Council's membership reflects a cross section of industry involved with the intellectual property system, and includes individuals from both large and small businesses, the legal and attorney professions and academia.

Examples of work completed by the Council include reviews (see ACIP web site) of:

• the petty patent system, which resulted in the introduction of a new form of patent, the innovation patent; and
  
• the enforcement of patents, which resulted in an announcement by the government last year of a range of initiatives aimed at improving businesses ability to enforce their patents.

Go to Section 2.1 Patents

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