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ARTICLE · 27 JUNE 2016

When is a plant variety distinct and when is it common knowledge?

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To be registrable, a plant variety must be distinct from any variety whose existence is a matter of common knowledge.

AustraliaIntellectual Property
Jacinta Flattery-O'Brien(Formerly With Shelston IP)
Jacinta Flattery-O'Brien(Formerly With Shelston IP)
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For a plant variety to be registrable by Plant Breeder's Rights (PBR) it must be "distinct" from any other variety whose existence is a matter of common knowledge.1 This begs the question, what makes a variety a variety of common knowledge? A recent decision from the PBR Office has clarified this issue and provided guidance regarding how distinctness should be measured against such varieties. The case concerned a variety of Lomandra (pictured) named "Lime Tuff" for which Bushland Flora (Bushland) was granted PBR in 2011. Majestic Selections Pty Ltd (Majestic) applied to the PBR Office for revocation of the PBR on a number of grounds, including that Lime Tuff was not distinct and that the applicant, or breeder nominated by the applicant, did not breed the variety.

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