November 11, 1998

Plant Breeders' Wrongs Righted in Australia?

Under attack for blatant abuses to its Plant Breeders' Rights (intellectual property) legislation and accused of abetting the biopiracy of Farmers' Varieties around the world - including Australian Aboriginal varieties - Canberra's beleaguered PBR Office has issued new regulations intended to prevent piratical plant patents. But will they? What about past abuses? What does it mean for the renegotiation of the WTO's TRIPS" (patent) chapter this December 1-2 (1998)?

"An Ounce of Prevention": Breeders applying in Australia for monopoly over a plant variety will now have to disclose the origins of the variety and identify its "parent" breeding stock, according to the Government's Plant Variety Journal (Vol. 11, No. 3, 1998). For the first time, applicants will have to explain how they obtained and bred the variety and describe how their variety differs from its parents. In their September 16th report (Plant Breeders' Wrongs), RAFI and HSCA (Heritage Seed Curators Australia) noted that 37% of the 118 suspect Australian claims offered no evidence of actual plant breeding - lending weight to the criticism that breeders were pirating Farmers' Varieties from overseas. The new regulations also oblige applicants to field trial their variety against its parent lines to prove that it is different. If breeders fail to do so, they must explain why. Again, HSCA and RAFI reported that 29% of the dubious claims had not shown that their variety was distinct from foreign introduced parents. A third change places a 2 year limit on 'provisional protection'. Previously, some breeders merely lodged applications for varieties; gained provisional protection allowing them to exercise monopoly rights over the variety; and never did submit evidence that their material deserved protection. This loophole allowed pirates to reap the benefits of protection year-after-year without doing the work. In their report, HSCA and RAFI noted that 16% of the 118 possibly wrongful claims were abuses of this type.

Still Needs "a Pound of Cure": While these three regulatory changes have the potential (if maintained and monitored) to address 90% of the causes of biopiracy in Australia, they relate only to new applications. Bill Hankin, President of HSCA, confirms that "These rules are not retroactive. The many certified varieties that would not have been able to meet these standards - and that were probably pirated - continue to be protected. Dubious varieties we have already identified that are still awaiting certification but whose applications were filed prior to the new rules, will be allowed to slip through. We're closing the barn door after too many of the horses have escaped."

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