2014 CIOPORA Chronicle

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Intellectual Property It has long been felt that the Australian PBR regime, although comprehensive in legislation, is impractical for effective enforcement by being too restrictive and expensive for most of the PBR holders in the ornamental sector. Enforcement reform: an The Australian Government has recognised this concern from the industry and the decision was made to review in a broad and strategic way, the role of intellectual property and its contribution to the development of Australian Industry and charged the Advisory Council on Intellectual Property (ACIP) with the responsibility to fulfil this objective. Significant developments It was recognised that significant developments are occurring at both a national and an international level in plant variety development and exploitation, which have increased the importance of Plant Breeders’ Rights and their enforcement. The goal was to review the effectiveness of Australian PBR enforcement. ACIP, an independent body that advises the appropriate Australian Federal Government Minister on intellectual property matters, was tasked to enquire, report and make recommendations to the Australian Government on issues related to the enforcement of Plant Breeders’ Rights in Australia and consider possible strategies to assist Australian PBR holders to effectively enforce valid rights. It Accepted by Chris Prescott There were a total of 23 recommendations submitted by ACIP and the Australian Government issued the Government’s response in June 2011 with 15 recommendations accepted, four accepted in principle and four rejected. The following is a brief outline of the recommendations that were accepted: • The PBR Act to be amended to clarify that harvested material, that is also propagating material, is to be considered as such material even if it is not being used for that purpose. • As part of IP Australia’s education and awareness programs, raise industry awareness of the opportunity to have specific taxa excluded from the farmer’s privilege exemption. • Encourage PBR owners to clarify to growers the conditions of sale of propagating material and their obligations in relation to future generations of it. • Enable EDV declarations to be made in respect of any variety. Currently an EDV declaration can only be made in respect to a protected variety • Retain responsibility for EDV declarations with the PBRO (Plant Breeder’s Rights Office) and ensure the PBRO has the ability to assess such applications. This may involve the Plant Breeder’s Rights Advisory Committee (PBRAC). • The jurisdiction of the second tier of the Federal Court of Australia to include PBR matters. This would dramatically reduce the legal costs of enforcing an infringement through the courts. The recommendation was that some disputes can be handled in the Federal Circuit Court at a lower cost and also making it easier for litigants to use this court in each Australian state rather than only in Canberra. It would also make it easier to obtain court orders from a judge in issues relating to customs seizures etc. This recommendation had been presented in the lower house of Parliament in 2013, however due to the federal election it was never ratified in the Senate. • IP Australia facilitates ADR (Alternative Dispute Resolution) for parties in dispute by establishing, maintaining and making publicly available basic information on the ADR options for PBR owners and a register of ADR service providers with PBR and plant breeding experience. ACIP is currently considering the establishment of an IP dispute resolution centre. The centre envisaged by ACIP would provide mediation, appraisal, validity and infringement opinion services, delivered by experts drawn from a panel on a case-by-case basis. • Introduce exemplary damages provisions for PBR: currently, when the court finds an infringer guilty, the title holder is only able to claim lost profits. In the case of most ornamental infringements this means that, even though the right holder has won the case, the expense of bringing such an action has left him out of pocket. With exemplary damages the court can issue a verdict that forces the infringer to pay beyond the lost profits. • IP Australia focuses its PBR educational and awareness efforts on the tertiary sector. • No changes to be made to extended rights. • No changes to be made to s. 17 (conditioning and use of farm saved seed) in relation to asexual propagation at this time. Asexual propagation by plant nurseries is an exercise of the exclusive right and is not exempted from infringement by s.17. • No changes to be made to exhaustion of PBR and clarify in the PBR Act that the mere sale of propagating material G0 for purposes of growing and selling G1 does not necessarily imply a licence to purchase crop G1. • No changes to be made to the pre-grant enforcement provisions. • The Government takes no action either in establishing an industry peak body or collecting agency, or in relation to the development of standard contracts and licence agreements at this time. 40 www.FloraCulture.eu | CIOPORA Chronicle June 2014
Australian story was not a general review of the PBR legislation, but more precisely it was a review established to identify difficulties in enforcement and recommend solutions to these difficulties where appropriate. Although I am not completely satisfied with all the outcomes of this review, and there are many areas that require further reform, I do, however, feel that ACIP has Accepted in principle The following is an outline of the recommendations accepted in principle: • There will be no change to the operation of farmer’s privilege. The Government indicated that it can work with the plant breeding industry and achieve the recommended result by better explaining the operation of section 17 in education and awareness campaigns. • An on-going Expert Panel to be established to provide guidance and opinions on general issues or specific cases concerning the PBR Act and related law. The Government noted that PBRAC already has the powers to investigate technical matters and administrative matters arising under the recommended to Government a well-defined road map that will assist breeders in the future by not only protecting their varieties, but more importantly - making it more efficient and cost effective to enforce their IP rights in Australia. The full ACIP report, as well as the Government response, is available online at http://www.acip.gov.au/ reviews/all-reviews/reviewenforcement-pbr/ ||| PBR Act, once these matters have been referred to the PBRAC by the Registrar. • IP Australia to liaise with the Australian Federal Police (AFP) and Commonwealth Director of Public Prosecutions (CDPP) with a view to increase the number of investigations and prosecutions of the PBR infringement cases. • Introduce an Information Notice System into the PBR Act based on the UK Information Notice system. IP Australia is to investigate the feasibility of developing a cost-effective Information Notice System to enable PBR owners to obtain information on the source of plant material from suspected infringers. IP’s central office in Canberra (Photo credits: IP Australia). Not accepted • A new “purchase” right to be added to s. 11 (general nature of PBR). Had this recommendation been accepted it would have provided the ability for an ‘End Point Royalty’ to be charged at place of purchase similarly to the pay-by-scan that is used in the USA. • Amendment to s. 4 (c) (definition of Essentially Derived Varieties) by replacing the test for important features with a test for essential characteristics. This recommendation would have brought Australia and CIOPORA’s positions on EDV and Minimum Distance closer together. • Introduction into the PBR Act of the PBR seizure powers for customs. The rejection of this recommendation places Australia at odds with other developed nations and makes global Plant Variety Protection problematic. It is greatly advisable for a market economy such as Australia, to have the ability to stop counterfeit material from entering the country with the use of customs. The rejection doesn’t mean a court order can’t be obtained to stop infringing product, but adds an additional step and is counter to the desired reform of enforcement. • Protection against mendacious variety declarations. Photo credits: IP Australia About the author Chris Prescott has 30 years of experience in the cut rose industry, 24 of which as the managing director of his own enterprise, Prescott Roses Pty Ltd. In the course of his carrier he taught commercial rose growing at Swinburne University and since 1994 he has been working as Qualified Person (QP) in the Australian PBR Scheme. Chris’ involvement with Grandiflora, where he is dealing with variety selection and IP strategies, began in 2004. He is currently in his second term as a member representing plant breeders at PBRAC (Plant Breeders Rights Advisory Committee), a committee that advises the Federal Minister for Industry on issues related to the PBR scheme at IP Australia. CIOPORA Chronicle June 2014 | www.FloraCulture.eu 41
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