A rare decision was recently handed down by the Australian Plant Breeder’s Rights Office, revoking a granted Plant Breeder’s Right (PBR) for a variety of the native Australian grass Lomandra known as ‘Lime Tuff’. The PBR grantee was Bushland Flora (‘Bushland‘) and the applicant for revocation was Majestic Selections Pty Ltd (‘Majestic‘). Majestic successfully made out two grounds for revoking the PBR.
THE VARIETY WAS NOT DISTINCT
For a plant variety to be registrable it must be “distinct”. A distinct plant variety is one that is “clearly distinguishable from any other variety whose existence is a matter of common knowledge”.
A variety may become common knowledge for a number of reasons, including commercialisation of propagating or harvested material of the variety, the variety being the subject of a PBR application resulting in the grant of a PBR right, or the public availability of plant material in a collection.
The first ground pressed (and subsequently made out) by Majestic was that the variety of Lomandra the subject of the PBR, ‘Lime Tuff’, was not clearly distinguishable from a variety of common knowledge known as ‘Little Pal’.
DNA Testing
Majestic attempted to show the relatedness of ‘Lime Tuff’ to 23 samples of Lomandra through the use of DNA evidence, specifically, the presence or absence of a suite of molecular markers.
The Delegate considered that the usefulness of DNA evidence in determining distinctiveness is limited, and that the DNA evidence provided by Majestic established relative relatedness between ‘Lime Tuff’ and the other varieties, but not necessarily phenotypic similarity.
Phenotypic Examination
The Delegate then considered phenotypic similarity between ‘Lime Tuff’ and other prior existing Lomandra varieties.
Majestic’s botanical expert indicated that there were only slight morphological differences between ‘Lime Tuff’ and the other Lomandra varieties and that “[t]hey all form robust tussocks with very numerous, narrow leaves of the same yellow-green colour and texture, both are equally hardy and adaptable to a wide range of conditions in horticultural applications, and they do not differ in method(s) of propagation.”
In view of the Expert’s evidence, the Delegate found that ‘Lime Tuff’ was not clearly distinguishable from the other Lomandra varieties (including ‘Little Pal’).
Common Knowledge
The Delegate then had to consider whether one or more of the other Lomandra varieties (including ‘Little Pal’) were plant varieties of common knowledge that existed prior to the PBR application for ‘Lime Tuff’. ‘Little Pal’ had been sold to a school prior to the filing date of the PBR application.
The Delegate indicated that this sale was sufficient for the variety to be considered as commercialised and was therefore common knowledge. The Delegate also indicated that it is how a plant variety looks that is important in determining whether it is common knowledge, rather than the labelling under which a plant variety is sold.
THE VARIETY HAD NO BREEDER
For a plant variety to be eligible for PBR protection, it must have been bred. Consequently, a PBR application must describe the breeding involved and nominate the breeder.
The second ground pressed (and subsequently made out) by Majestic related to the PBR application for the variety ‘Lime Tuff’ inaccurately describing the breeding process.
The breeder of ‘Lime Tuff’ intended to select progeny resulting from the hybridisation of Lomandra longifolia and Lomandra confertifolia subsp. pallida.
However, evidence from the Melbourne Herbarium and Majestic’s botanical expert suggested that ‘Lime Tuff’ was not the result of hybridisation, and therefore, as Bushland submitted no evidence to the contrary, the Delegate held that ‘Lime Tuff’ was not bred as described.
TAKE-HOME MESSAGES
This decision teaches us that a plant variety the subject of PBR will be deprived of registrability if it is not clearly distinguishable from another variety that has been sold prior to the filing date of the PBR application, regardless of whether the breeder is aware of the other variety. It also does not matter what name the other variety is sold under, it is what the variety looks like that is important.
This decision also highlights the importance of accurately recording the breeding methods used to produce a plant variety, lest the PBR be susceptible to revocation. If there is any doubt as to whether the variety is clearly distinguishable from known varieties, it may be wise to seek independent verification of a variety by, for example, a Herbarium, before filing the PBR application. This may also help resist an attack on the breeding methods of the PBR.
