Australian Intellectual Property Law

Most modern laws that protect new plant varieties derive from the 1961 International Convention for the Protection of New Varieties of Plants (UPOV), which was subsequently revised in 1972, 1978 and 1991. The UPOV Conventions provide a system that enables breeders to recoup some of the associated costs of bringing a plant into cultivation through the grant of exclusive rights in the reproductive and propagating material of a new plant variety. By way of balance, others can use protected varieties for further breeding of new varieties. This regime provides additional benefits for contracting states: the ability to control the reproduction and maintenance of their own plant varieties as well as the improvement of access to new varieties from other countries. Following an extensive debate, Australia adopted the minimum standards in UPOV 1978 and enacted them in the form of the Plant Variety Rights Act 1987 (Cth). Some years later, Australia adopted and implemented the provisions of the 1991 revision of the Convention (UPOV 1991) in the Plant Breeder’s Rights Act 1994 (Cth) (PBRA). The Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) made both substantive and procedural amendments to the PBRA, all of which are in effect at the date of publication. The principal substantive reforms relate to essentially derived varieties, unjustified threats of infringement, and discretion to award additional damages. The text below presents the law following these amendments. IP Australia is responsible for the administration of the PBRA.