There is a link between the experimentation/research exemption discussed in Section 3.9.2 of this Guide. The unfettered availability of protected varieties for other breeder's to develop a new variety could result in new varieties which are similar to the ones from which they have been derived.

The Expert Panel on Plant Breeding recognised a deliberate limited tension between the protection of the new variety and the unfettered commercialisation of varieties developed from it. A number of commentators have addressed the issue which is a double-edged sword. By having this freedom to operate, all breeders have immediate access to the newest varieties as a source of variation for their breeding programs. On the other hand the commercial value of their own new varieties may be limited because another breeder will develop new varieties more quickly with the free access to source material.

Donnenwirth et al (2004) have argued that if a plant breeder does not have enough time to recover the investment cost then they will not take the increased risk needed to introduce more diverse germplasm and incremental breeding will result. They advocate at a minimum, a period of years before the plant breeding exemption comes into play.

With regard to commercialisation of incrementally bred varieties if the change from the first variety is large, the breeder of the second variety can exercise PBR in that variety without reference to the breeder of the first variety.

However, where a relatively minor change between two varieties occurs, the PBR Act recognizes the rights of the first breeder through the possibility of a 'declaration of essential derivation (EDV)'. Basically, the EDV concept is directed towards protection against 'copycat' activity, not against incremental breeding and the innovation that springs from that endeavour. Genetic modification, whether done by 'traditional' or 'biotech' methods, is not necessarily 'copying'.

The Expert Panel on Plant Breeding defined the term "incrementally bred" as being applicable to all varieties that share the majority of their characteristics with direct ancestors, irrespective of the breeding methodology used.

The first breeder must apply for a declaration of EDV in terms of the criteria established under the Plant Breeder's Rights Act 1994 (Section 40), and, if successful, has equal rights with the second breeder in the essentially derived variety ie the breeder of the first variety and the breeder of the essentially derived variety share the rights to the essentially derived variety. This is hoped to promote development of varieties with clear differences so that there will not be any need for ownership disputes.

Click "More Info" for detail on who makes the decision and criteria for making it.

UNDERSTANDING PBR | USEFUL LINKS | FAQs (IP AUST WEB SITE) | FEEDBACK | DISCLAIMER