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
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'.
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
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
The Delegate then considered phenotypic similarity between
'Lime Tuff' and other prior existing Lomandra
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
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').
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
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
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.
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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