Clarification of Plant Breeding Issues under the
Plant Breeder's Rights Act 1994
SOURCE POPULATION ISSUES - CASE SCENARIOS
1. Ownership of the Source Population
Legal ownership of, or access to, the source population is not an eligibility requirement for PBR protection of a new variety.
Q1. For PBR purposes, can a new variety be bred from a source population obtained from private or public land without permission of the owner, or from material held 'in trust' in a Genetic Resource Centre (GRC)?
YES. PBR does not require an applicant to prove authorisation to access resources/knowledge in the development of an invention.
The issue of legal ownership of the source population is outside the scope of UPOV 1991, the PBRA and other IP legislation. Therefore, a new variety's eligibility for PBR protection is not dependent on legal ownership, prior informed consent, or agreement to access the source population used to develop the new variety.
It must be understood that PBR requirements have a limited scope and that remedies for issues outside that scope must be pursued through appropriate channels. Issues of legal ownership of source population must be pursued and resolved separately in the relevant legal context. Protection will not automatically be invalidated on the basis of a Court decision relating to ownership of the source population (intellectual property rights exist independent of physical property rights).
The Panel's view is that it is inappropriate to seek to involve the PBR Office in matters that are outside its legally enforceable mandate. It is the responsibility of the interested party to be aware of, and to deal with, such matters in the appropriate fora.
2. Location/Origin of the Source Population
Eligibility for PBR protection of a new variety is not dependent on the location/origin of the source population, or whether the source population is cultivated or uncultivated (i.e. 'wild' or 'naturalised').
A previously unknown phenotype of Grevillea is identified as a mutant branch (a 'sport') on a single plant from a population of 10 plants in an uncultivated situation.
Q2.1 Can an applicant claim to be the breeder by discovering the sport and vegetatively propagating it in preference to other phenotypes on the plant, or in that population?
YES, provided that the variety is shown to be different from the plant on which it was discovered, and from the source population as a whole.
Q2.2 If an applicant discovered the same plant in a commercial nursery or on another's private property would this affect eligibility? (It is still the same new variety with the same characteristics).
NO. Location/origin is not a criterion for determining eligibility.
Neither UPOV 1991 nor current PBR Office practice limits the location/origin
of the material in which a plant of a new variety may be discovered (however
the location/origin must be known - see PBRA section 26(1)(g)).
Accordingly, there are no special or different criteria applied to varieties
arising from an uncultivated source population.
Q2.3 Several seed packets are received from a GRC. The seed from each packet is sown in individual rows. After evaluation one highly uniform row is 'selected' for further propagation. Can the person receiving the seed from the GRC seek protection successfully?
NO, generally speaking. Even if the applicant could show that the variety differs from the source population, the applicant could not normally claim to be the discoverer. This is because the applicant would have been given the material rather than coming upon it independently.
3. Homogeneous Source Population
PBR protection is not available for a variety arising from a selection in a homogeneous population.
On a collecting trip, a person obtains seeds from a number of plants that are scattered over a very wide area. The seeds from each plant are packeted separately and labelled. Subsequently, seed from each packet is sown as a single row and, after evaluation, one row is 'selected' for further propagation in preference to the other rows. Possible scenarios are as follows.
Q3.1 The 'selected' row is uniform and all seed from the row is bulked to form the new variety.
NOT ELIGIBLE for protection unless the applicant can describe how the new variety differs from the source population in which the original plant was discovered.
Q3.2 The selected row is not uniform and undergoes several cycles of single plant selection over successive generations. Further evaluation of the progeny of plants selected from the 'selected' row identifies one plant that is propagated in preference to the other plants in that generation. Progeny of that plant are highly uniform (including over generations) and no further selection is necessary.
ELIGIBLE for protection provided the applicant can describe how the variety differs from the source population, or any intermediate generation.
PBR protection is not available for a variety arising from a selection in a homogeneous population, because the plant variety is identical to its source population. In addition, where the source population is also a variety of common knowledge (VCK), the new variety would be ineligible through lack of distinctness.
The burden of proof to identify a difference or differences between the candidate variety and the source population rests with the breeder. Where a selection is demonstrated to be different from a supposedly homogeneous population, the selection may be eligible for protection.
Simply bringing an existing uniform variety into cultivation is not breeding.
PBR protection is available when the breeding criteria (including that the variety is distinct from the parent and other varieties) are met through prima facie evidence, or a declaration.
Can the criteria for breeding be satisfied if the exact parentage of a new variety is unknown, or if nothing is known about the parents? Possible scenarios are as follows.
Q4.1 A person discovers a desirable seedling by chance, but the parents are unknown. Although it may be possible to deduce the parents it cannot be done with any certainty. Is the variety potentially eligible for protection?
YES, based on current PBR Office practice where the applicant is required to declare how the variety differs from all potential parents. This may be done, for example, through direct/indirect comparisons of the candidate variety with existing varieties until the establishment of a difference or differences from all potential parents. Where the seedling is likely to have arisen from nearby plants, the applicant should provide argumentation in support of limiting the comparison process to those nearby plants.
Q4.2 A breeding program, using recurrent selection, was initiated 15 years ago. Although the parentage is known, the source material has long since disappeared, and so has the person who initiated the work. Consequently, although the variety can be shown to be distinct from existing varieties, no information is available, and no claims are made, on how/why it differs from the source material. Does the variety potentially meet the requirements of 'breeding'?
NO. Without any prima facie evidence or declaration supporting breeding, the variety cannot be registered. (Also see Q4.3).
Q4.3 A new variety is bred by recurrent selection following controlled pollination of two breeding lines. Although the breeding lines are no longer available, the applicant states, as evidence of breeding, that the new variety is different from the maternal parent as it is highly resistant to stem rot and the parent is not. Is the variety potentially eligible for protection?
YES. A prima facie case has been provided. It should be noted that the candidate variety could be compared to, and differentiated from, the original parent or parents or any intermediate generation.
Q4.4 A new variety is bred by discovery and selective propagation from within what was thought to be an apomictic population. Although the source population is no longer available, the applicant states, as evidence of breeding, that the new variety is different from the source population as it is highly resistant to stem rot and the source population is not. Is the variety potentially eligible for protection?
YES. A prima facie case has been provided to suggest that the variety is different from the source population.
Consistent with UPOV 1991 and current PBR Office practice, PBR protection
is available when the applicant meets the breeding criteria through prima
facie evidence, or a declaration to that effect. This includes demonstrating
that the variety is distinct from the parent or other varieties (see PBRA
Inadequate evidence, including incomplete records, will not sustain a
prima facie case that the criteria for breeding have been met.
Acceptable prima facie evidence can be provided in many forms. Where there is no possibility of comparing the variety with the source population (e.g. where the source population is extinct) a prima facie case for breeding may include a description of:
- the variability inherent in the breeding system of the variety (e.g. selfed vs outcrossed);
- why the source population or the progeny of the source population was likely to be variable (e.g. through observation, etc);
- the methods used to isolate and purify one phenotype from that variability;
- details of test growing that took place outside Australia in the case
of varieties bred overseas (see PBRA section
5. Population Boundaries
To prove that breeding has occurred, the applicant may have to define the population boundary of the source population before demonstrating the difference between the source population and the new variety. Proof of breeding is a different proof than that required to demonstrate distinctness, uniformity and stability (DUS).
A number of plants are collected from uncultivated areas throughout a State. After evaluation one plant is 'selected'. It is clearly different from the other collected plants, as is expected, due to the wide-ranging conditions under which the species has evolved. Other plants in 'the area' where the selected plant was collected are likely to be less different. Sometimes 'the area' is quite small, e.g. 10mē, sometimes it is much larger, e.g. 10kmē.
Q5.1 Can the applicant use the entire State collection as the source population?
NO, generally speaking. It is the responsibility of the breeder to define and to justify what constitutes the area of the source population. Generally, the larger the area, the more difficult it becomes for the breeder to justify their claim.
Examples may be encountered of seeds obtained from a GRC where the parentage is not known and the seeds may be variable or highly uniform. This part of the report should be read in conjunction with 2.1 Location/Origin of the Source Population, Question 2.3 and with 6.1 Selection from a Variable Population, Question 6.4.
To meet the criteria of selective propagation, a new variety must be different from plants growing in the immediate breeding population in which it was discovered.
Generally, the source population are plants growing in the 'immediate vicinity' in which the selection was made. When population boundaries are unclear, the source population is taken to include plants growing in the area of the breeding population in which the new plant was discovered. Generally, this area will be quite limited. However, it is recognised that in exceptional circumstances the area could be quite large, depending on the species, its environment and mode of reproduction. It is the responsibility of the breeder to define and to justify what constitutes the boundary of the source population.
Note that while the criteria for breeding may be satisfied, a new variety may not be distinguishable from other known populations, in which case the application for protection would fail through lack of distinctiveness.
6. Selection from a Variable Population
Eligibility for PBR protection is dependent on the new variety meeting all the criteria, including breeding and distinctness from all other varieties of common knowledge. Eligibility of breeding is affected by the frequency of plants indistinguishable from the variety that occur in the source population.
Many populations of plants exhibit a wide range of phenotypes. For example, a population of Banksias may exhibit a range of flower colours from red to violet. When a plant is selected from within the known range of a variable population there may be other plants in that same population (or other populations) that are the same as, or very similar to, the selected plant. Does the existence (real or notional) of 'similar' plants, not occurring as known varieties/forms, make protection unavailable?
A 'preferred' plant is discovered in an uncultivated population. Possible scenarios are as follows.
Q6.1 No other plant in the source population possesses the same combination of characteristics. The plant is propagated vegetatively in preference to the other plants in the uncultivated population. Is the variety arising from the preferred plant potentially eligible for protection?
Q6.2 The plant is propagated vegetatively in preference to the other plants and can be shown to be different from the population as a whole, but not from every individual plant in the population (around 1% of plants in the source population possess the same combination of characteristics). Is the potential new variety arising from the preferred plant likely to qualify for protection?
YES. This is because the potential new variety has been compared with the source population and shown to be distinct within the 1% allowable statistical limit.
Q6.3 Does the decision on breeding eligibility change according to the frequency of plants identical to the desirable plant (e.g. when the desirable plant constitutes 5%, 10%, 50%, or 90% of the source population)?
YES. At some point, the variety is no longer eligible for PBR when it becomes statistically indistinguishable from the source population.
Q.6.4 A person receives a packet of seed from a GRC. When grown, the seed produces a population of highly variable plants. One plant was 'selected' and shown to be different from that variable population. Is the variety potentially eligible for protection?
Consistent with UPOV 1991 and current PBR Office practice, if a variety meets the criteria for breeding of 'discovery' and 'selective propagation', it is then also assessed against the DUS criteria before determining eligibility for protection.
The Panel noted that there may be statistical occurrences of plants in the source population (or other populations) that are indistinguishable from that which the breeder has discovered; selectively propagated; met the distinctness/uniformity/stability test; and registered. The breeder's right is not normally infringed by commercialisation of populations that include indistinguishable plants provided that:
- the indistinguishable plants have not been sourced from the registered variety; and
- the population as a whole is distinguishable from the registered variety.
 'Wild' refers to uncultivated species indigenous to the location while 'naturalised' refers to uncultivated species not indigenous to the location.
 A plant's phenotype is the observable properties of the plant and is produced by the genotype in conjunction with the environment.
 Unless either (i) the rights of the discoverer have
been assigned to the applicants(s) (see PBRA section
3(1) 'breeder' or, (ii) the discoverer and the selective propagator
jointly apply for PBR (see PBRA section 5(2)).
 For further information see FloraBank Guidelines 10 at www.florabank.org.au
 The UPOV test for comparing two (or more) phenotypes/populations to determine distinctiveness is more stringent than that normal for scientific testing. For example, the probability that two populations are different is usually accepted in most scientific tests when the P value is = < 0.05 (i.e. 5%) while the UPOV level is set at only 1%.