HG Alert: World food demand prompts savvy plant breeding - 20 July 2011

The push towards increased food production globally will see a rise in commercial opportunities to find newer, stronger and faster-growing varieties of plants and plant products, with the need to protect Plant Breeders’ rights also increasing.

Forensic science has long been used in the world of criminology, but the same technology is now being used to protect the investment of a Plant Breeder’s time and money. In Europe, for example, scientists are amassing a vast bank of plant samples that could be used in court cases over breeders' rights.

“As Plant Breeding becomes more commercial and lucrative, so does the need to become more sophisticated to ensure protection of those rights,” said HopgoodGanim Associate Hayden Delaney.

"These technological advances in protection are also being recognised around the world. The EU has stepped into a new pilot project which will see samples of tested varieties being stored in their Community Plant Variety Office (CPVO). These samples, collected across the 27 member states, could then be used for DNA testing, which allows breeder's an immediate chain of evidence when taking legal action," he said.

During the 2010 election the Gillard Government committed to developing a National Food Plan. The plan, which aims to double food production by 2050, has begun its development and it’s important to see where the ripples of such big changes could flow.

Australia has been deemed to have the potential to lead the fight to secure global food supplies by exporting its produce and its farming and agricultural-science know-how. The Australian agricultural sector is in a very strong position; 98 per cent of the nation’s fresh produce is grown and supplied by our own farmers. And while Australia’s food supply is secure, the National Food Plan aims to meet the needs of significantly increased food production and protect Australia’s own food security in the years to come. There will need to be a constant balancing act to ensure our food industry can make the most of the rapidly developing market opportunities. Australia must, ultimately, position itself to manage future risks, but equally, to innovate.

What are Plant Breeder’s Rights?

Plant breeding involves significant time, skill and finance and the exploitation of new plant varieties can produce significant competitive advantages. Plant Breeder’s Rights (PBR) are exclusive commercial rights for the use of new and distinguishable plant varieties.

Breeders of new varieties of plants or plant products, for example; fruit, vegetables, flowers, herbs and wheat, can apply for PBR under the Plant Breeder’s Rights Act 1994 (Cth).

The process of obtaining PBR is somewhat analogous to that of patent protection, in that there is a registration requirement, and an examination with respect to distinctiveness, uniformity and stability. Protection can last up to 25 years depending on the type of plant being registered.

The grant gives rise to various exclusive rights, such as the right to produce, reproduce and sell propagating material and fruit.

However, the natural copying mechanisms inherent in plants can result in easy copying, once new varieties are produced. This can pose major risks and challenges for Plant Breeders. Protecting unique plant species from being copied is much like the need for protecting a new invention; commercial success can depend upon it.

Some facts about plant breeding:

  • By 2004 there were more than 4000 protected species.
  • Around 400 new applications are received each year.
  • Up to 100 new breeders enter the scheme each year.
  • Approximately 60% of all applications are from overseas.
  • Most applications are from the private sector.

The Latest Protections

New scientific measures have joined the legal arsenal of PBR protection.

The Federal Court was recently willing to utilise genetic testing to prove infringement of the PBR in the “Sweetheart” cherry. The Court allowed the applicants to take samples of plant material growing on the respondent’s property and genetically test that material to determine whether the sampled material was of the same variety as theirs. And while the matter settled out of court, the results were made public and their Honours were willing to make a declaration that infringement of the “Sweetheart” cherry did occur.

As the potential market for planting breeding heats up, it is paramount that the registration of PBR occurs where appropriate and that principal legal protection is complimented by other mechanisms to increase the likelihood of a return on a Plant Breeder’s innovation.