INTELLECTUAL PROPERTY – UNDERSTANDING PLANT BREEDER’S RIGHTS

NOTE: In these chapters on Farmer-saved propagating material, reference to "seed" includes all other forms of propagating material as defined in the PBR Act 1994.

Section 17 of the PBR Act allows a person who has legitimately purchased PBR protected propagating material (eg. seed) to keep the seed from the first growing onwards for the production of more propagating material, if it is for the person’s own use. The seed or other propagating material delivered to the purchaser is the original ‘first generation’ material. Generally PBR is exhausted (does not apply) in relation to this material and the produce it.

However once that first generation seed has been planted and new propagating material created, that seed obtained from the first growing is ‘second generation’ propagating material.

This matter was discussed by Mansfield J in Cultivaust vs Grain Pool [2004] [FCA638 21/5/04]. The case confirmed that a farmer can use propagating material from the initial propagating material legitimately obtained. Section 17 of the Plant Breeder's Rights Act 1994 “authorises” the retention of the seed (originally obtained by legal means) for use as propagating material for the subsequent generation of crop. However, if the farmer saves seed from the first generation crop and sells the harvested material, without the further authorisation of the grantee of PBR, the grantee is entitled to seek to exercise the PBR rights in accordance with Section 14 or Section 15 of the PBR Act.

Mansfield J links Section 17 with Section 14(2) of the Plant Breeder's Rights Act 1994:

“in my view, s14(2) describes the status of second and subsequent generations of crop (other than that retained for farm saved seed), so that second and subsequent generation of crop are also to be treated as if the harvested material were propagating material covered by Section 11” of the PBR Act."

This case was appealed to the full Federal Court and the decision was brought down in October 2005 (Cultivaust v Grain Pool [2005]). However it does not really resolve the situation under the current PBR Act. When the actions were brought, the old Section 18 (which was deleted in the 2002 amendments) made special exceptions for the sale of genetic material (eg grain) as food.

"57 His Honour’s characterisation may involve a confusion of the concept of exercising the right that constitutes PBR with the concept of enforcing rights that arise under the Plant Breeder’s Act by reason of infringement of the right, conferred by the Plant Breeder’s Act, that constitutes PBR. That is to say, if s 14(1) be relevant, the primary judge may have misconstrued s 14(1)(b) in failing to distinguish between the grantee’s right under s 11 and the secondary rights that arise by reason of infringement of that right, as provided for in s 53(1). In the light of the conclusion reached above, it is unnecessary to resolve that question but it should not be thought that his Honour’s view of ss 14(1)(b) and 15(1)(b) would necessarily be endorsed if the question arises in the future."

PBR interacts with other laws
The Plant Breeder’s Rights Act exists amongst other laws in Australia which all operate concurrently and tend to interact with each other. Commonwealth laws and state laws are often considered by lawyers who seek to advise PBR grantees and users on how to deal the Act. This was raised in the case of Grain Pool v the Commonwealth [2000] paragraph 81.

For example, a Court might not uphold term or condition of a contract which substantially lessened competition because of the trade practices legislation which operates nationally (See Section 2.4 of this Guide on Trade Practices and Fair Trading).

PBR is essentially a negative right bestowed on the grantee to stop another person from doing certain acts with the variety. The grantee of the right can always allow a person to do something with their variety which would otherwise infringe their right. However, the Act prescribes an exemption to PBR so that PBR, by definition, can never be infringed by a purchaser acting within the farmer saved seed exemption.

The PBR holder may therefore turn to legal mechanisms outside the Act if they seek to achieve an adequate commercial arrangement to stop another person’s use of the exemption. One way could be through a contract that sets conditions to limit the use of the seed. The PBR holder may seek to create a right to sue for breach through contract law. Contracts have their own rights of redress (eg damages).

Contracts are usually documents drafted by a lawyer on instructions. The Plant Breeder’s Rights Office does not give advice on contracts. However, lawyers who practice in the area of PBR in Australia should be able to provide further advice on individual situations and circumstances.