Essentially Derived Varieties: Is Australia’s Plant Breeder’s Rights Framework Still Fit for Purpose?
IP Australia is consulting on whether Australia’s framework for essentially derived varieties (EDVs) under the Plant Breeder’s Rights Act 1994 (Cth) (PBR Act) remains fit for purpose. The consultation arises from stakeholder concerns that the way EDVs are defined under the PBR Act is unclear and the threshold for establishing EDVs is too high.
The Current Requirements for EDVs
The PBR Act provides that a plant variety is an EDV of another plant variety if the following three criteria are met:
- it is predominantly derived from that other plant variety; and
- it retains the “essential characteristics” that result from the genotype or combination of genotypes of that other variety; and
- it does not exhibit any “important (as distinct from cosmetic) features” that differentiate it from that other variety.
What is IP Australia Considering?
IP Australia is seeking input across three areas:
Clarity of the EDV Provisions
This consultation topic focuses on the meaning of the terms “essential characteristics” and “important”, and the relationship between the two. The former is defined in the PBR Act, while “important (as distinct from cosmetic) features” is not, with the current test suggesting that cosmetic features may not be important. IP Australia is seeking input on whether these concepts do, and should, perform different functions. It also queries whether the distinction created for cosmetic features is appropriate given that such features may be commercially important, where, for example, the variety relates to flower shape and colour. IP Australia also recognises that for fruit varieties, colour may be commercially relevant because of consumer preferences and hence the marketability of particular varieties in different geographical markets.
The Appropriate Threshold for Establishing Essential Derivation
Driven by recent advances in gene editing and precision breeding methods, IP Australia notes that stakeholders have raised concerns that the EDV threshold is too high, noting that the “important (as distinct from cosmetic) feature” requirement is unique to the Australian PBR regime. IP Australia proposes two possible approaches to the EDV threshold.
Improving the EDV Process
IP Australia seeks input on whether more detailed guidance and greater transparency on the EDV determination process would assist breeders. For example, it seeks input on the utility of publishing EDV decisions and whether EDV determinations should be assessed by a court, rather than the PBR Registrar.
The consultation process provides stakeholders with a valuable opportunity to shape how EDVs are determined and regulated in Australia and to provide guidance on what information would be useful if it was made publicly available. IP Australia is seeking input from all relevant stakeholders and submissions to the consultation remain open until 30 October 2026. Submissions can be made via the IP Australia Consultation Hub.
If you have questions or would like assistance with responding to the consultation, please contact us.
By: Rachelle Downie and Adam Dimasi