The Expert Panel on Plant Breeding took the view, based on the advice of the Australian Government Solicitor (Appendix 2 of the Expert Panel Report, regarding 'discovery') that:
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it has its normal meaning (as there is no relevant jurisprudence in the PBR Act context); |
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it can occur on more than one occasion; |
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it does not occur if the variety is commonly known; |
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in the absence of information to the contrary, the 'discoverer' is the first to file for PBR protection; and |
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a person cannot normally be considered the 'discoverer' of a plant if someone else provides the particulars of its existence to that person. |
The Panel's view regarding 'selective propagation' is that: 'selective propagation' has its normal biological meaning; and the scientific basis for assessing whether 'selective propagation' has occurred is a comparison, between the candidate plant variety and the population/parents from which it was developed, that demonstrates a clear difference in at least one characteristic. The Panel's view of breeding is that, for the purposes of the PBR Act, eligible breeding methodologies include the same three fundamental steps:
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Amassing, or locating, plant material with sufficient variation (herein after referred to as the 'source population') to enable genetic variation to be identified. This variation could be: 'natural' variation (i.e. created without human interference such as spontaneous mutation); or could be 'man-made' variation (eg through genetic transformation, cross-pollination, induced mutations, etc). |
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Selection of a particular plant, or group of plants, having a set of 'desirable' characteristics from within the source population. |
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Propagation of the particular plant form (in preference to other plant forms in the source population) must occur, resulting in a change in the expression of one or more characteristics between the source population and the new variety. For a registrable new variety to be produced, this propagation would have to result in a variety that also met the criteria of distinctness, uniformity and stability, and of non-exploitation. |
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