| UNDERSTANDING PBR HOME > 4. CRITERIA FOR PROTECTION > 4.7 VARIETY OF COMMON KNOWLEDGE Page 4.7 |
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A new plant variety must be Distinct from all other varieties of common knowledge. There is no comprehensive definition of ‘variety of common knowledge’ although discussions in UPOV continue to identify circumstances where common knowledge can be established. For example, the plain English meaning includes those situations where a variety is cultivated and marketed in the public domain. Other examples of varieties of common knowledge include: an application for PBR has been made or the the variety has been entered on an official register in any country; precise description of the variety in a publication; inclusion in a reference collection; and the existence of living material in publicly accessible plant collections. It is the responsibility of the Qualified Person, drawing on their expertise, and on available reference material, to compare the new variety with others. Determining whether a new variety is of common knowledge is not limited by geographic boundaries. Given that other countries do not publish material that facilitates such determination, there are reasonable limits as to how much can be done regarding global checks and normal risk management principles are applied in terms of checking the known sources. One advantage of UPOV membership is the ability to check variety description with registered varieties in other member countries. Le Buanec (2004) advocates a world-wide database of phenotypic descriptions of varieties of common knowledge (as a minimum using those with PBR protection from UPOV member countries) to facilitate DUS testing. The Australian PBR Office is taking a lead by publishing its descriptions on the PBR web site. The Plant Breeder's Rights Act 1994, provides some safeguards if an existing variety is missed, although this is expensive for the breeders and should be avoided by proper checking at the time of application. For example, if the existence of a similar variety became known after the grant of rights, there is always the possibility that PBR can be revoked (Section 50 PBR Act). .
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