Sanderson, Jay; Adams, Kathryn --- "Are Plant Breeder's Rights Outdated? A Descriptive and Empirical Assessment of Plant Breeder's Rights in Australia, 1987-2007" [2008] MelbULawRw 30; (2008) 32(3) Melbourne University Law Review 980
[*] BAppSc (VUT), BA (UQ), LLB (Hons) (QUT); Research Fellow, Australian Centre for Intellectual Property in Agriculture, Griffith Law School, Griffith University.
[†] BScAgr (Hons) (Syd), LLM (QUT), MBus (NSWIT), MEnvStud (Macq); Senior Research Fellow, Australian Centre for Intellectual Property in Agriculture, Griffith Law School, Griffith University. Kathryn Adams was the first Registrar of Plant Breeder’s Rights in Australia
(1987–1990). The authors wish to thank Charles Lawson, the anonymous referees and Greg Roebuck of the Melbourne University Law Review for their comments and suggestions on earlier drafts of this article.
[1] In some jurisdictions (including the United Kingdom and United States), these rights are referred to as ‘plant variety rights’. Throughout this article, the phrase ‘plant breeder’s rights’ will be used unless specific reference is made to the Plant Variety Rights Act 1987 (Cth), which was in force from 1 May 1987 until 10 November 1994. It is the practice in Australia to refer to breeder’s rights (instead of breeders’ rights).
[2] William Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (2nd ed, 1989) 148, 148 fn 37 (stating that the scheme was ‘outmoded’ and questioning ‘whether the regime has a viable future’); Cary Fowler, Unnatural Selection: Technology, Politics, and Plant Evolution (1994) 152 (suggesting that the plant breeder’s rights scheme may become, ‘in the words of critic Pat Mooney, “the Neanderthal of intellectual property systems”’).
[3] In contrast, a proponent of plant breeder’s rights, Margaret Llewelyn, has argued that the sui generis scheme is well adapted. First, Llewelyn points to the substantive amendments made by the International Convention for the Protection of New Varieties of Plants, opened for signature 2 December 1961, 815 UNTS 89 (entered into force 24 April 1968), as revised on 19 March 1991 (‘UPOV 1991’), as evidence that plant breeder’s rights have dealt with technological advances. Secondly, Llewelyn considers the ‘image’ of plant breeder’s rights and suggests that changes to this image have ‘served to modernise the plant variety protection ensuring it can no longer be dismissed as “outmoded”’: see Margaret Llewelyn, ‘From “Outmoded Impediment” to Global Player: The Evolution of Plant Variety Rights’ in David Vaver and Lionel Bently (eds), Intellectual Property in the New Millennium (2005) 137, 149.
[4] Mark Janis and Stephen Smith, ‘Technological Change and the Design of Plant Variety Protection Regimes’ (2007) 82 Chicago Kent Law Review 1557, 1566–70.
[5] See Plant Breeder’s Rights Act 1994 (Cth) s 3 (‘expression’ of characteristics).
[6] Instead of plant breeder’s rights, the authors argue for the reconceptualisation of plants as datasets that breeders manipulate to express particular characteristics: Janis and Smith, above n 4, 1577–9. The authors conclude by suggesting that these datasets could be better regulated by general unfair competition laws rather than a sui generis plant breeder’s rights scheme: at 1607–14. For further elaboration of the claims of Janis and Smith, see Laurence Helfer, ‘The Demise and Rebirth of Plant Variety Protection: A Comment on Technological Change and the Design of Plant Variety Protection Regimes’ (2007) 82 Chicago Kent Law Review 1619.
[7] Once released, a new plant variety can be easily reproduced by others who harvest the seeds and then duplicate the plant innovation: see generally Jack Kloppenburg, First the Seed: The Political Economy of Plant Biotechnology (1988); Fowler, above n 2.
[8] Generally, it is felt that leakage adversely affects breeders’ ability to generate economic reward for their efforts: see, eg, Submission to the Australian Advisory Council on Intellectual Property (‘ACIP’), Review of Enforcement of Plant Breeder’s Rights, 8 May 2007 (Australian Seed Federation); Submission to ACIP, Review of Enforcement of Plant Breeder’s Rights, 4 April 2007 (Crop and Food Research Australia Pty Ltd).
[9] See further Jay Sanderson, ‘Back to the Future: Possible Mechanisms for the Management of Plant Varieties in Australia’ [2007] UNSWLawJl 39; (2007) 30 University of New South Wales Law Journal 686, 690–6.
[10] Attempts to assess the qualitative impacts of intellectual property have been made in the area of patents, copyright and trade marks: see, eg, Arnold Plant, ‘The Economics of Copyright’ (1934) Economica 167; Edmund Kitch, ‘An Economic Review of the Patent System’ (1977) 20 Journal of Law and Economics 265; William Landes and Richard Posner, ‘The Economics of Trademark Law’ (1988) 78 Trademark Reporter 267; William Landes and Richard Posner, ‘An Economic Analysis of Copyright Law’ (1989) 18 Journal of Legal Studies 325.
[11] Currently there are 65 members of the International Union for the Protection of New Varieties of Plants (‘UPOV’): see UPOV, Members of the International Union for the Protection of New Varieties of Plants (1 September 2008) <http://www.upov.int/export/sites/upov/en/about/
members/pdf/pub423.pdf>. One member acceded to the International Convention for the Protection of New Varieties of Plants, opened for signature 2 December 1961, 815 UNTS 89 (entered into force 24 April 1968) (‘UPOV 1961’), later revised on 10 November 1972; 23 members acceded to the Convention, as revised on 23 October 1978 (‘UPOV 1978’); and 41 members acceded to UPOV 1991.
[12] UPOV, Report on the Impact of Plant Variety Protection (2005). For other attempts at assessing plant breeder’s rights, see Tirtha Dhar and Jeremy Foltz, ‘The Impact of Intellectual Property Rights in the Plant and Seed Industry’ in Jay Kesan (ed), Agricultural Biotechnology and Intellectual Property: Seeds of Change (2007); Robert Tripp, Niels Louwaars and Derek Eaton, ‘Plant Variety Protection in Developing Countries: A Report from the Field’ (2007) 32 Food Policy 354; William Lesser, ‘Assessing the Implications of Intellectual Property Rights on Plant and Animal Agriculture’ (1997) 79 American Journal of Agricultural Economics 1584; Julian Alston and Raymond Venner, ‘The Effects of the US Plant Variety Protection Act on Wheat Genetic Improvement’ (2002) 31 Research Policy 527; L J Butler and B W Marion, ‘The Impacts of Patent Protection on the US Seed Industry and Public Plant Breeding’ (North Central Regional Research Bulletin No 304, University of Wisconsin‑Madison College of Agricultural and Life Sciences (Research Division), 1985).
[13] A general trend towards increased applications can also be seen in UPOV, Plant Variety Protection Statistics for the Period 2002–2006 (25 October 2007) <http://www.upov.int/export/
sites/upov/en/documents/c/41/c_41_07.pdf>.
[14] However, there has been some work done examining specific issues in relation to plant breeder’s rights in Australia: see Matthew Rimmer, ‘Franklin Barley: Patent Law and Plant Breeders’ Rights’ (2003) 10(4) E Law — Murdoch University Electronic Journal of Law <http://www.
murdoch.edu.au/elaw/issues/v10n4/rimmer104.html>; Charles Lawson, ‘Patents and Plant Breeder’s Rights over Plant Genetic Resources for Food and Agriculture’ [2004] FedLawRw 5; (2004) 32 Federal Law Review 107; Jay Sanderson, ‘Essential Derivation, Law and the Limits of Science’ (2006) 24(1) Law in Context 34; Sanderson, ‘Back to the Future’, above n 9.
[15] The methodology for the empirical analysis is explained in Part V. Replication of such research offers an opportunity to advance discussion and evaluation of plant breeder’s rights.
[16] This is exemplified by recent submissions to the Review of Enforcement of Plant Breeder’s Rights conducted by the ACIP which tend to assume that enforcement is ineffective, but without providing any analysis for such claims: see Written Submissions on the Enforcement of Plant Breeder’s Rights (PBR) (2007) Australian Advisory Council on Intellectual Property <http://www.acip.gov.au/pbrsubs.html> .
[17] This provides a transparent explanation of how the data was gathered and what categories were used, helping to ensure the reliability and validity of the research.
[18] Internationally, plant breeder’s rights were developed to specifically meet the needs of intellectual property in plant innovation and, in 1957, a conference was held in Paris to consider the protection of new plant varieties. This led, in 1961, to UPOV 1961, which provided an internationally recognised regime of plant breeder’s rights: see UPOV, The First Twenty‑Five Years of the International Convention for the Protection of New Varieties of Plants (1987). In Australia, the debate over plant breeder’s rights began sporadically in the late 1960s and gained momentum in the 1970s: see Senate Standing Committee on National Resources, Parliament of Australia, Plant Variety Rights (1984) 7–9.
[19] Section 51(xviii) of the Constitution grants the federal Parliament power to make laws with respect to ‘copyrights, patents of inventions and designs, and trade marks’. As we will see later, there was a long running battle between Western Australia and the Commonwealth government in relation to this issue which culminated in Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 (‘Grain Pool’).
[20] Senate Standing Committee on National Resources, above n 18, 7–8.
[21] See Rob McQueen, ‘Propagation of Growth: Agribusiness and the Seed Industry in Australia’ (1980) 9 Journal of Australian Political Economy 59; A P Ockwell, ‘Plant Variety Rights — A Review of Issues’ (Occasional Paper No 65, Bureau of Agricultural Economics, 1982); Eric Edwards, ‘Plant Variety Rights and the Senate Committee Report’ (1985) 16 Search 294.
[22] Senate Standing Committee on National Resources, above n 18, 43.
[23] See Ockwell, above n 21; Edwards, above n 21, 296–8; Senate Standing Committee on National Resources, above n 18, 43.
[24] In this way, plant breeder’s rights were described as ‘government intervention in the market place to create an artificial monopoly for a private interest’: Pat Mooney, ‘Genetic Diversity and Plant Variety Rights’ (Paper presented at the Plant Variety Rights for Australia Seminar, Sydney, 23 September 1980) 14. See also Senate Standing Committee on National Resources, above n 18, 15–22; Mark Cole and Tony Belcher, Seeds for the Taking: The Case against Seed Patenting in Australia (1981).
[25] Judy Messer, ‘The Case against Plant Variety Rights’ (Paper presented at the NSW Department of Agriculture Seminars, Sydney, 13 December 1981).
[26] See Senate Standing Committee on National Resources, above n 18, 38–42.
[27] Alec Lazenby, Australia’s Plant Breeding Needs: A Report to the Minister for Primary Industry (1986) 122.
[28] Ibid.
[29] Ibid. Lazenby acknowledged, however, that in Australia plant varieties were patentable by referring to the decision of National Research Development Corporation v Commissioner of Patents [1959] HCA 67; (1959) 102 CLR 252 and the decision of the Assistant Commissioner of Patents in relation to Rank Hovis McDougall Ltd’s application to the Australian Patents Office in 1976: ibid 123.
[30] The Committee’s report was subsequently tabled on 10 May 1984 with two Senators submitting a dissenting report: Senate Standing Committee on National Resources, above n 18.
[31] Lazenby, above n 27, 135.
[32] The passage of the Plant Variety Rights Bill 1987 (Cth) was far from straightforward and three Bills were prepared between 1979 and 1982, with some 229 submissions received: see Senate Standing Committee on National Resources, above n 18, 85–9.
[33] Commonwealth, Parliamentary Debates, House of Representatives, 8 October 1986, 1648–9 (John Kerin, Minister for Primary Industry). Traditional justifications for plant breeder’s rights can be broadly stated as incentives for plant breeders to devote the resources, labour and time needed to produce new plant varieties. The primary justification for the establishment of intellectual property schemes is utilitarian, based on providing incentives: see Peter Drahos, A Philosophy of Intellectual Property (1996); Christopher May and Susan Sell, Intellectual Property Rights: A Critical History (2006).
[34] Commonwealth, Parliamentary Debates, Senate, 24 March 1994, 2306 (John Faulkner, Manager of Government Business in the Senate).
[35] Commonwealth, Parliamentary Debates, House of Representatives, 8 October 1986, 1648 (John Kerin, Minister for Primary Industry).
[36] Commonwealth, Parliamentary Debates, Senate, 24 March 1994, 2306 (John Faulkner, Manager of Government Business in the Senate).
[37] Senate Standing Committee on National Resources, above n 18, 22–9. It was then up to the market to decide whether the differences were sufficient to encourage customers to buy the ‘new’ varieties.
[38] Broadly speaking, plant breeding can be separated into three phases. These are domestication (which is over 10 000 years old), classical plant breeding (which began in the 1700s), and genetic engineering (which, although emerging in the 1970s, did not become a regular breeding technique until the 1990s): see generally Jack Brown and Peter D S Caligari, An Introduction to Plant Breeding (2008).
[39] This is known interchangeably as classical, traditional or conventional plant breeding. Classical methods rely heavily on the work of the Austrian monk Johann ‘Gregor’ Mendel, who by formulating the laws of heredity provided the foundation for classical plant breeding. While the laws of heredity were applied widely in a practical sense by plant breeders, it was the work of Mendel — or more accurately — its rediscovery in 1900 by Carl Correns (Germany), Erich von Tschermak (Austria) and Hugo de Vries (Netherlands) that led to widespread adoption: see generally Colin Tudge, In Mendel’s Footnotes: An Introduction to the Science and Technologies of Genes and Genetics from the Nineteenth Century to the Twenty‑Second (2000).
[40] Building upon the discoveries of James Watson and Francis Crick who, in 1952, unravelled the double helix structure of deoxyribonucleic acid, better known as DNA: Lily Kay, Who Wrote the Book of Life? A History of the Genetic Code (2000).
[41] This contrasts with earlier plant breeding methods which modified the plant variety at the plant and cellular level: see further Brown and Caligari, above n 38.
[42] The two main methods of producing transgenic plants are by transporting the DNA into the plant cell via the bacterium agrobacterium tumefaciens or by shooting the DNA through the cell wall using biolistics: see Jim M Dunwell, ‘Review: Intellectual Property Aspects of Plant Transformation’ (2005) 3 Plant Biotechnology Journal 371, 375.
[43] Janis and Smith, above n 4, 1578–9.
[44] See generally Brown and Caligari, above n 38.
[45] Senate Standing Committee on Natural Resources, above n 18, 1.
[46] See generally H Phoebe Chan, ‘International Patent Behaviour of Nine Major Agricultural Biotechnology Firms’ (2006) 9 AgBioForum 59; Mark Janis, ‘Supplemental Forms of Intellectual Property Protection for Plants’ (2004) 6 Minnesota Journal of Law, Science and Technology 305.
[47] In the late 19th century, propagating material was regularly sent through the post by government agencies: see generally Geoff Raby, Making Rural Australia: An Economic History of Technical and Institutional Creativity, 1788–1860 (1996) 32–5; Robin Bromby, The Farming of Australia (1986) 15.
[48] Lazenby, above n 27, 34–5. See also David Godden, ‘Growing Plants, Evolving Rights: Plant Variety Rights in Australia’ (1998) 6 Australasian Agribusiness Review <http:www.agrifood.
info/review/1998/Godden.html>; R W Downes, Australian Plant Breeding Requirements for Current and Future Crops in Relation to Market Forces (1990).
[49] Bob Lindner, ‘Privatised Provision of Essential Plant Breeding Infrastructure’ (2004) 48 Australian Journal of Agricultural and Resource Economics 301, 302. See also Ross Kingwell, ‘Institutional Change and Plant Variety Provision in Australia’ (2005) 13 Australasian Agribusiness Review <http://www.agrifood.info/review/2005/Kingwell.html> .
[50] More research needs to be done into the relationship between plant breeder’s rights, research and development corporations and the funding of plant breeding.
[51] The primary objective of these corporations is to invest in research and development for the benefit of industry and community. Recently, a number of research and development corporations became companies limited by guarantee that are owned by the relevant industry and obtain statutory funding (with similar levy collection provisions) from the federal government. For example, the former Horticulture Research and Development Corporation is now part of Horticulture Australia Limited (‘HAL’), which works ‘in partnership with the horticulture sector to invest in programs that provide benefit to Australian horticulture industries’: see HAL, About HAL Overview (2008) <http://www.horticulture.com.au/abouthal/overview.asp> HAL, HAL Constitution (2008) <http://www.horticulture.com.au/abouthal/HAL_Constitution.asp> HAL, HAL Deed of Agreement (2008) <http://www.horticulture.com.au/abouthal/HAL_Deed_of_
Agreement.asp>.
[52] This is dollar‑for‑dollar funding for expenditure on research and development up to 0.5 per cent of the gross value of production for the relevant industry: Primary Industries and Energy Research and Development Act 1989 (Cth) s 32.
[53] One example in this area is the imposition of end‑point royalties: see Sanderson, ‘Back to the Future’, above n 9, 697–702; Grains Research and Development Corporation, PBR Agreement Fact Sheet (March 2008) <http://www.grdc.com.au/uploads/documents/2008‑03-03%20GRDC_
FactSheet_PBR%20FINAL%20for%20dist.pdf>.
[54] This assumes that the funds generated from royalties are being put back into breeding programs. For a discussion of the issues surrounding end‑point royalties, see Sanderson, ‘Back to the Future’, above n 9, 697–702.
[55] It is difficult to determine which came first: the move by public breeding programs to obtain more external investment, or the introduction of plant breeder’s rights, which gave breeders a mechanism to operate more commercially. This is exacerbated by the increase in end‑point royalty agreements being used by owners of plant breeder’s rights as part of the terms of use of the new varieties. Whereas initially the breeders charged a royalty on propagating material, there has been a move to minimise the impact of farm‑saved propagating material and reduce the higher up‑front royalties with end‑point royalties. See further ibid 697–702.
[56] Rural Advancement Foundation International (‘RAFI’), ‘Plant Breeders Wrongs’ (Press Release, 16 September 1998). See also Commonwealth, Parliamentary Debates, Senate, 21 October 2002, 5553 (John Cherry); RAFI, ‘Australia’s Unresolved Plant Piracy Problems’ (Press Release, 12 April 1999).
[57] RAFI changed its name in 2001 to the ‘Action Group on Erosion, Technology and Concentration’ (‘ETC Group’): ETC Group, ‘International Advocacy Group Changes Name, President, and Widens Agenda’ (Press Release, 5 September 2001).
[58] The controversy was (partly) resolved when the Australian Plant Breeder’s Rights Office revoked the offending applications. However, further claims were made by RAFI that Australian breeders held plant breeder’s rights certificates on varieties held in trust by the International Center for Agricultural Research in the Dry Areas (‘ICARDA’) and the Consultative Group on International Agricultural Research (‘CGIAR’): Bill Hankin, ‘Australia Bungles Plant Breeders’ Rights’ (1998) 19(2) Australasian Science (Incorporating Search) 43; RAFI, ‘Australia’s Unresolved Plant Piracy Problems’, above n 56.
[59] Plant Breeder’s Rights Act 1994 (Cth) s 5. The Plant Variety Rights Act 1987 (Cth) did not include a definition of breeding and instead the concept of ‘origination’ was used. Other commentators felt that biopiracy was not so much a problem of definition but of communication between researchers and seed banks: see Matthew Rimmer, ‘Blame It on Rio: Biodiscovery, Native Title, and Traditional Knowledge’ [2003] SCULawRw 1; (2003) 7 Southern Cross University Law Review 1, 40.
[61] Expert Panel on Breeding, Clarification of Plant Breeding Issues under the Plant Breeder’s Rights Act 1994 (December 2002) <http://www.anbg.gov.au/breeders/plant-breeders-rights-act-report.pdf> 2.
[62] Ibid 8. For a discussion of the history of plant inventions in the US, see Alain Pottage and Brad Sherman, ‘Organisms and Manufactures: On the History of Plant Inventions’ [2007] MelbULawRw 22; (2007) 31 Melbourne University Law Review 539.
[63] Expert Panel on Breeding, above n 61, 7–8.
[64] Plant Breeder’s Rights Act 1994 (Cth) s 26(2)(ga). See also Plant Breeders Rights Australia, ‘Part 1 — General Information’ (1998) 11(3) Plant Varieties Journal 2, 2–3.
[65] Australian Seed Federation, ‘Peak Seed Body Set to Crack Down on PBR Cheats’ (Press Release, 16 November 2004); GRAIN, The End of Farm‑Saved Seed? Industry’s Wish List for the Next Revision of UPOV (February 2007) <http://www.grain.org/briefings/?id=202> .
[66] Asa Wahlquist, ‘Dirty Work by Pirates as Breeding Gets Seedy’, The Australian (Sydney), 17 February 2005, 33.
[67] See ACIP, A Review of Enforcement of Plant Breeder’s Rights: Options Paper (June 2008) <http://www.acip.gov.au/library/ACIP%20PBR%20Enforcement%20Options%20Paper.pdf> .
[68] See, eg, Submission to ACIP, Review of Enforcement of Plant Breeder’s Rights, 31 May 2007 (Benny Browne); Submission to ACIP, Review of Enforcement of Plant Breeder’s Rights (Department of Agriculture and Food, Government of Western Australia); Submission to ACIP, Review of Enforcement of Plant Breeder’s Rights, 22 May 2007 (Heritage Seeds Pty Ltd).
[69] ACIP, Options Paper, above n 67, 42–62.
[70] The Plant Variety Rights Act 1987 (Cth) was repealed and replaced by the Plant Breeder’s Rights Act 1994 (Cth) to reflect changes made by UPOV 1991. For a discussion of these changes, see Llewelyn, above n 3, 139–43. In addition, the plant breeder’s rights scheme has been amended a number of times either as part of broader intellectual property reform (see, eg, Intellectual Property Laws Amendment Act 2006 (Cth)) or as a result of more specific concerns over the plant breeder’s rights system. For example, the Plant Breeder’s Rights Amendment Act 2002 (Cth) amended s 18 to ‘clarify intent, remov[ing] the possibility of misinterpretation’ by introducing an explicit restriction on the exercise of a plant breeder’s rights owner’s right of disallowance if the operation of concurrent legally enforceable legislation empowers a third party to act: Revised Explanatory Memorandum, Plant Breeder’s Rights Amendment Bill 2002 (Cth) 2.
[71] Grain Pool (2000) 202 CLR 479.
[72] Western Australia argued that plant varieties were not ‘inventions’ under s 51(xviii) of the Constitution: ibid 503 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[73] In so doing, the High Court rejected ‘any notion that the boundaries of the power conferred by s 51(xviii) are to be ascertained solely be identifying what in 1900 would have been treated as a copyright, patent, design or trade mark’: ibid 495–6. This endorsed the dissenting judgment of Higgins J in A‑G (NSW) ex rel Tooth v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469. For a recent discussion of this topic, see Charles Lawson, ‘Revisiting the Commonwealth Parliament’s Legislative Authority for Patent and Patent‑Like Schemes under the Constitution’ (2006) 17 Australian Intellectual Property Journal 243.
[74] (1997) 75 FCR 528. This case involved interpretation of ‘sale’ under ss 3 and 14 of the Plant Variety Rights Act 1987 (Cth). However, it is also applicable to ss 3 and 43 of the Plant Breeder’s Rights Act 1994 (Cth).
[75] The application related to a grapevine variety known as ‘Sugraone’: Sun World (1997) 75 FCR 528, 529 (French J).
[76] This was decided under the Plant Variety Rights Act 1987 (Cth) s 14: ibid.
[77] This ‘larger transaction’ included the transfer, inter alia, of ‘real estate and world wide patent rights’: Sun World (1997) 75 FCR 528, 535 (French J). In fact, the Court considered several different transactions involving Sugraone, and had to determine whether any of these transactions amounted to a ‘sale’ for the purposes of s 14: at 530–2 (French J).
[78] Sun World argued that the price paid for the vines was not the real ‘commercial value’ and therefore no sale had occurred. It also argued that while a document evidencing one of the transactions considered by the Court was entitled ‘Contract for the sales of vines’ and the language used in this document was that of sale and purchase, the substance of the document extended beyond the transfer of vines, and therefore it could not be considered as conclusive evidence of sale. French J disagreed: ibid 543.
[79] Ibid 542–3. On appeal, the Full Federal Court also found that the ‘sale’ of Sugraone vines was not invalidated by the fact that the sale agreements placed additional restrictions on the way the vines could be used: Sun World International Inc v Registrar, Plant Breeders’ Rights (1998) 87 FCR 405, 413 (Carr J).
[80] Sections 43(7)–(7C) of the Plant Breeder’s Rights Act 1994 (Cth) now provide that in certain circumstances the disposal of materials derived from multiplication, testing or research activities is not considered a sale and therefore does not limit a variety’s eligibility for plant breeder’s rights registration.
[81] Under s 43(6) of the Plant Breeder’s Rights Act 1994 (Cth), a plant variety is taken not to have been exploited if, at the date of lodging the application, plant material of the variety has not been sold to another person by, or with the consent of, the breeder (or successor in title) outside the specified time periods.
[82] For a general discussion on law reform, see Geoffrey Sawer, ‘The Legal Theory of Law Reform’ (1970) 20 University of Toronto Law Journal 183.
[83] A S Watson, An Evaluation of the Plant Variety Rights Scheme: Final Report of a Consultancy Undertaken for the Commonwealth Department of Primary Industries and Energy (1993).
[84] Ibid i.
[85] Ibid.
[87] The issue of farm‑saved seed was not relevant on appeal and, therefore, the Full Federal Court did not decide the issue: Cultivaust Pty Ltd v Grain Pool Pty Ltd [2005] FCAFC 223; (2005) 147 FCR 265, 276–7 (Finn, Emmett and Bennett JJ).
[88] In particular, there is confusion over the relationship between propagating material and harvested material: see Sanderson, ‘Back to the Future’, above n 9, 692–6.
[89] ACIP, A Review of Enforcement of Plant Breeder’s Rights: Issues Paper (March 2007) <http://www.acip.gov.au/library/ISSUES_PAPER_v28%20print%20version.pdf> 17.
[90] Submission to ACIP, Review of Enforcement of Plant Breeder’s Rights, 8 May 2007, 5–6 (Australian Seed Federation).
[91] Submission to ACIP, Review of Enforcement of Plant Breeder’s Rights, 2 (Department of Agriculture and Food, Government of Western Australia).
[92] Submission to ACIP, Review of Enforcement of Plant Breeder’s Rights, 3 (Dr Matthew Rimmer).
[93] The methodology is set out in Part V (the ‘Appendix’).
[94] William Lesser and Martha Mutschler, ‘Lessons from the Patenting of Plants’ in Max F Rothschild and Scott Newman (eds), Intellectual Property Rights in Animal Breeding and Genetics (2002) 103; Gregory Graff, Gordon Rausser and Arthur Small, ‘Agricultural Biotechnology’s Complementary Intellectual Assets’ (2003) 85 Review of Economics and Statistics 349; Chan, above n 46.
[95] Lesser and Mutschler, above n 94. Globally, the dominant biotechnology crops are soybean (57 per cent of the global biotechnology area), corn (25 per cent), cotton (13 per cent) and canola (5 per cent). The dominant traits are herbicide tolerance (68 per cent), insect resistance (19 per cent) and stacked traits (13 per cent): see International Service for the Acquisition of Agri‑Biotech Applications, ISAAA Brief 37‑2007: Executive Summary — Global Status of Commercialized Biotech/GM Crops: 2007 (2007) <http://www.isaaa.org/resources/publications/
briefs/37/executivesummary/default.html>.
[96] Ibid.
[97] As noted in Part V, there is a small amount of overlap in these categories.
[98] As noted in Part III, the nursery industry was one of the main sectors pushing for the introduction of plant breeder’s rights.
[99] See, eg, the South Australian government’s Drought Response Initiative, which specifically provides assistance to the nursery industry: South Australian Government Drought Response Initiative, SA Drought E‑news (2 August 2007) <http://www.pir.sa.gov.au/pirsa/drought/
programs__and__services/e-newsletters/2007_sa_drought_e-news_archive/sa_drought_e-news,_
2nd_august_2007#two>.
[100] See generally Llewelyn, above n 3.
[101] Watson, above n 83, iii.
[102] In 2007, both Victoria and New South Wales decided not to extend the moratorium on growing genetically modified canola: Department of Primary Industries, Victoria, Review of the Moratorium on GM Canola (21 July 2008) <http://www.dpi.vic.gov.au/DPI/nrenfa.nsf/LinkView/5477226A88881F86CA2572E300074EEF89E6C67B468BD2A7CA256FB70001BAB8> Department of Primary Industries, New South Wales, GM Canola Moratorium Information (2005) <http://www.dpi.nsw.gov.au/aboutus/news/recent-news/agriculture-news-releases/?a=148
650>. For a brief discussion of the moratoria and the legal issues faced by farmers who grow both GM and non‑GM crops, see Troy Anderson, ‘Seeds of Conflict: Potential Legal Issues with Genetically Modified Crops’ (2008) 44(3) Law Society Journal 56.
[103] The first commercial genetically modified crop was cotton in 1996: Department of Agriculture, Fisheries and Forestry, Australian Government, A National Market Access Framework for GM Canola and Future GM Crops (2007) 5.
[104] Janis and Smith, above n 4, 1558.
[105] See generally Llewelyn, above n 3.
[106] IP Australia maintains a ‘searchable database’ of plant varieties registered under the plant breeder’s rights scheme in Australia. The database includes ‘a detailed description and image for every variety granted full rights and basic information for other PBR varieties’: IP Australia, On‑Line Database for PBR Varieties <http://www.ipaustralia.gov.au/pbr/journal_onlinedb.
shtml>.
[107] Slightly different results may be obtained from the database depending on whether it is searched by common name, variety, genus or species.
[108] The trend‑line was calculated using two year periods. For example, the average of the number of applications for 1988 and 1989 was used to calculate the first data point, the average of the number of applications for 1989 and 1990 was used to calculate the second data point and so on.
[109] The number of rights granted lags behind the number of applications made by approximately two years (the time taken to finalise testing data and examine the application). Not all accepted applications proceed to grant; quite a number are withdrawn (817 of the applications accepted during the period 1 January 1987 to 31 December 2006) and a smaller number have been refused (only 18 of the 5082 applications accepted during the period 1 January 1987 to 31 December 2006). This could be for a number of reasons including the cost associated with conducting field trials or paying the fees, the variety not performing as expected, or inability to demonstrate the distinctness, uniformity and stability criteria. Furthermore, successful objections may be raised.
[110] This is assuming that breeders will protect plant varieties that have the potential to be successful, or varieties for which protection is important for some reason. The decision to protect a plant variety is likely to be determined by a number of factors.
[111] To be accepted, the application has to contain certain information including, inter alia, a brief description of the variety to establish a prima facie case that it is distinct, the name of the parent variety and a brief description of the manner in which the variety was bred: Plant Breeder’s Rights Act 1994 (Cth) ss 26(2)(e), (gb).
[112] A breeder can apply whether or not they are an Australian resident or citizen and whether or not the variety was bred in Australia: Plant Breeder’s Rights Act 1994 (Cth) s 24(2).