| UNDERSTANDING PBR HOME > 4. CRITERIA FOR PROTECTION > 4.3 PRIOR EXPLOITATION > Page 4.3 |
| A new variety is one which has not been sold with the breeder's consent prior to applying for PBR. A recently exploited variety is one which has been sold with the breeder's consent in Australia for no more than 12 months, or up to four years overseas (with the exception of trees and vines in which a six year overseas prior sale limit is permitted). Sub-sections 43(5), (6), (7, 7A, 7B, 7C) of the Plant Breeder's Rights Act set out the conditions for any sale prior. These prior sale provisions extend beyond the propagating and harvested material to include products obtained from harvested material. Materials derived from testing or research and development activities are not considered as sales and therefore do not limit a variety's eligibility for PBR. Exclusions from the definition of “sell” The amendments were introduced to address the practice of testing varieties in farmers’ paddocks before lodging an application. Often farmers exchange the use of their land for the residue of the harvest once the experiment is completed and these (and other similar) practices may previously have qualified as ‘sales’. The PBR Act now provides that in certain circumstances the disposal of materials derived from multiplication/ testing/research activities are not considered as sales and therefore do not limit a variety’s eligibility for PBR. In addition, the exclusion is extended beyond propagating and harvested material to also include products obtained from harvested material. If an applicant is uncertain as to whether a specific activity constitutes a sale, you should contact the PBR office and take private legal advice before embarking on any substantive action.
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