The intent of Plant Breeder’s Rights is to:

• stimulate investment in innovation in plant breeding and
• give Australian producers access to the best varieties.

Propagating material is the key element of new plant breeding and helps to maintain the genetic diversity needed if new varieties are to keep pace with changing environmental and consumer conditions. To ensure that new varieties are available to provide the building blocks for the next generation of plant breeding, the UPOV system for Plant Breeder's Rights provides an exemption for use of a protected variety in experiments or in plant breeding (Section 16 of the Plant Breeder’s Rights Act 1994).

To ensure that the second plant breeder has to develop a different variety from the one(s) being used to provide the base genetic material Plant Breeder’s Rights cannot be granted for a new variety unless it is “clearly distinguishable” from the original variety (Section 43(2)). This means that the second breeder has to do “sufficient” additional work to develop a new variety.

The original breeder is further protected by the need to recognise the first breeder if a new variety is “essentially derived” or “dependent” on the first variety. The Plant Breeder’s Rights Act 1994 does not require the difference to be “useful” but it must be clearly different.

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