1
Australia – legal framework:
relevant laws; jurisprudence and current trends
Australian Government
Department of Innovation, Industry, Science and Research
IP Australia
Doug Waterhouse, Chief PBR
UPOV Symposium on Contracts in relation to PBR
31 October 2008
The Commercial Reality
• It is widely acknowledged for many crops, that if
the breeder looses control of the variety after the
first seed is sold, then the opportunity to recover
costs and accumulate funds for future investment,
is low.
• What is needed:
• Control beyond the first sale, and/or
• Practical methods to recoup costs at one, or
more places, in the marketing chain
2
Australian ‘Operating Environment’
• Legal framework – key features
• Legislation
• PBR Act (UPOV 91 compliant) eg authorisation, exhaustion
• Trade Practices Act
• Common law: case law, contract law, civil actions
• Operational framework
• Release of new varieties
• Little government control on release (excl weed, GMO, drugs)
• No compulsory merit testing; no national list
• Breeders decide how to commercialise
• Direct commercialisation
• Contracts/licenses ↑↓ (+/- PBR)
• Farm Saved “Seed” normal for many crops
PBR is a restricted monopoly
–
Breeder’s authorisation is required for a limited range
of [commercial] activities
– Therefore the exercise of PBR is the ‘right’ to exclude
others from doing those activities
– Authorisation may be subject to conditions or
limitations provided those conditions comply with other
laws of the land
PBR coexists with other laws of the land
How does PBR work?
Key Concept
3
• PBR ‘monopoly’ vs Trade Practices Act
• “It is now accepted that intellectual property laws
do not intrinsically clash with competition law
because they do not generally create
comprehensive legal or economic monopolies”. Alan
Fels (Australian Competition and Consumer
Commission (ACCC))
• Contract conditions are more likely to be problematic
• Closed loop marketing arrangements are not
inherently anti-competitive, each case has to be
take