2.0 INTRODUCTION

Plant Breeder’s Rights, Patents and Trade Marks can all be used to protect new plant varieties. In October 2004 the Australian Plant Breeder’s Rights Office relocated from the Australian Government Department of Agriculture, Fisheries and Forestry to the office of IP Australia. As a result all the key areas of intellectual property, except Copyright (administered by the Attorney General's Department), are now under a single administration.

The web site for IP Australia provides details of these key areas of Intellectual Property. Although this Guide is specifically about Plant Breeder's Rights, it is important for potential applicants to understand the differences in scope and the limitations and exemptions associated with each of the relevant forms of Intellectual Property. For example a Trade Mark cannot be the name, or part of the name, of a plant variety. However, it is possible to use a Trade Mark in conjunction with a variety name, with the variety name having equal prominence.

It is possible to have Plant Breeder’s Rights over a plant variety that may also have patents over it or its components such as genes. In practical terms this is of most relevance to the breeder who will need to ensure freedom to operate before developing a new product. With Plant Breeder's Rights there is an exemption for use of a protected variety in research or further breeding, but this is not the case if a patent is involved.

It may also be relevant to a grower in relation to the farmer-saved seed exemption in Plant Breeder’s Rights which does not apply to a variety or its components which are covered by a patent.

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