Plant breeders' rights

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Plant breeders' rights (PBR), also known as plant variety rights (PVR), are rights granted in certain places to the breeder of a new variety of plant that give the breeder exclusive control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years.

With these rights, the breeder can choose to become the exclusive marketer of the variety, or to license the variety to others. In order to qualify for these exclusive rights, a variety must be new, distinct, uniform, and stable.^[1] A variety is:

• new if it has not been commercialized for more than one year in the country of protection;
• distinct if it differs from all other known varieties by one or more important botanical characteristics, such as height, maturity, color, etc.;
• uniform if the plant characteristics are consistent from plant to plant within the variety;
• stable if the plant characteristics are genetically fixed and therefore remain the same from generation to generation, or after a cycle of reproduction in the case of hybrid varieties.

The breeder must also give the variety an acceptable "denomination", which becomes its generic name and must be used by anyone who markets the variety.

Typically, plant variety rights are granted by national offices after examination. Seed is submitted to the plant variety office, who grow it for one or more seasons, to check that it is distinct, stable, and uniform. If these tests are passed, exclusive rights are granted for a specified period (typically 20/25 years, or 25/30 years for trees and vines). Renewal fees (often, annual) are required to maintain the rights.

Breeders can bring suit to enforce their rights and can recover damages. Plant breeders' rights contain exemptions that are not recognized under other legal doctrines such as patent law. Commonly, there is an exemption for farm-saved seed. Farmers may store this production in their own bins for their own use as seed, but this does not necessarily extend to "brown-bag sales" (i.e. resale of farm-saved seed to neighbors in the local area).^[2] Further sales for propagation purposes are not allowed without the written approval of the breeder. There is also a breeders' exemption (research exemption in the 1991 Act) that allows breeders to use protected varieties as sources of initial variation to create new varieties of plants (1978 Act),^[3] or for other experimental purposes (1991 Act).^[4] There is also a provision for compulsory licensing to assure public access to protected varieties if the national interest requires it and the breeder is unable to meet the demand.

There is tension over the relationship between patent rights and plant breeder's rights. There has been litigation in Australia, the United States, and Canada over the overlap between such rights.^[5] Each of these cases was decided on the principle that patents and plant breeders' rights were overlapping and not mutually exclusive. Thus, the exemptions from infringement of plant breeders' rights, such as the saved seed exemption, do not create corresponding exemptions from infringement of the patents covering the same plants. Likewise, acts that infringe the plant breeders' rights, such as exportation of the variety, would not necessarily infringe a patent on the variety, which only allows the patent owner to prohibit making, using, or selling (first sale, but not resale) the patented invention.