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31 May, 2002
Plant Labels and the Meaning of PBR to gardeners and growers
Most gardeners don’t know what PBR means. PBR simply means "Plant Breeder’s Rights". It allows the opportunity for a breeder to obtain a royalty on a particular plant that he has bred. This label prohibits unauthorised people from reproducing and selling that plant. The plant industry and the public should know and respect the rules on plant breeder’s rights labels.
PBR on a label means that it really is a kind of patent on that plant. You may however purchase that plant and cross pollinate with another plant or cross it to itself and then sell the progeny of these plants. If the progeny is not significantly different from the PBR’d variety then it may infringe PBR. The real point is that the difference does not necessarily have to be one of commercial importance, eg. if one variety has many hairs on the underside of the leaf and another variety has none then it is a clear difference although probably not of any commercial significance and can be sold. The second point on this is that if a variety is bred from another PBR’d variety and does not differ in an important characteristic the breeder of the PBR’d variety may claim that it is essentially derived (this would only apply if both varieties have been granted PBR). Hybridising affects thousands of home growers and hobbyists. At the last count there were over 15,000 geranium and pelargonium cultivars on record in Australia alone. Add to this the number of roses, orchids and daisies and the result will surprise you.
Thousands of retirees in Australia and in the US are falling on tougher times and are supplementing their pensions through backyard horticulture. The nursery industry mostly ignores them. Hybridising is fun and is really so simple, it takes only a few seconds to take the pollen from one flower to another and later collect the seed. The details of simple hybridising may be viewed on the web-site: geraniumcottage.com.
An Australian home gardener recently found a new lavender seedling in her garden, then registered it and is now collecting royalties which could continue for life here and overseas. The University of New South Wales sells new varieties of petunias to Japan and Europe. They are also very helpful in advising small growers.
Problems may arise with the PBR program and boutique growers. Firstly, anyone may propagate PBR labelled plants for use in their own garden without risk of infringement. Problems occur with plants in a retail situation that do not have labels but in this case PBR may still be applicable even though the retailer has been careless. Should you propagate these plants it may be regarded as an innocent infringement. Wrong labelling is also very common and results in the same problem in innocent infringement.
Many nurseries use one label for 10 varieties without indicating which one you may be holding in your hand at the time. The result again could be an innocent reproduction as it’s not your fault that some retailers are careless in ticking their labels. Labels that appear to be bluffing could later become a PBR registration at the end of the free 12 month test marketing period for a new plant. Anyone who has a new plant variety has 12 months from the first date they choose to sell in order to test market that plant, perhaps without a label. By 12 months they must have lodged their application with the PBR office. Otherwise the variety is ineligible. Often, but not always, labels are used with appropriate wording that advises an intention to apply for PBR. This is a weak link in the system and you should make inquiries at the nursery if you intend to reproduce that plant for sale. The plant breeder may be only too happy to grant you rights to reproduce provided you pay their 10 cent royalty or whatever.
If you hope to run a small boutique nursery it may be worthwhile to pay royalties to a plant breeder even if there is no PBR registration. The advantage here is if you do the right thing the grower will supply you new varieties each year and support you with a good label. We have helped over 30 growers throughout Australia set up their little boutique nurseries in happy retirement.
The cost to register a plant with PBR is free in the first year and is only $300 in the second year and then $1400 at the start of the third year. There is an annual fee thereafter of $300, plus an extra $300 for a certificate fee at the end of the PBR trials, which is usually at 3½ years from the first sale date.
Note: That in the first year unless an application is lodged and accepted by the PBR office there is no protection for the grower. Therefore test marketing can be risky.
It’s interesting to note that no-one has been fined in the courts for propagating PBR registered garden plants as yet in Australia. There have been numerous out of court settlements. Infringement, whether innocent or not, should not be taken lightly. It can be an expensive mistake! Don’t be intimidated by officious people in the market place or at garden clubs if you have been selling a PBR registered variety innocently, simply withdraw it or offer to pay the prescribed royalty to the breeder. Most complaints have been settled amicably. Incidentally, horticultural scientists at the new Kings Park laboratory in Perth tell us that their new high tech DNA equipment will not separate one tetraploid geranium from another even if one has a red flower and the other white or pink. DNA may not provide proof for prosecution in PBR claims.
Granny’s old varieties are not acceptable for registration with PBR. New registrations must be new plants under 12 months from the first sale or under four to six years from overseas growers. Some catalogues when checked may prove that PBR registrations could be actually invalid, simply being too old to register. These plants would need to be re-named before sold.
PBR is a great concept but until the retailers and wholesalers in the nursery industry learn to train their staff, label correctly and educate the public, then many small growers and home gardeners will be quite confused. Enjoy your gardening and if you have created some special plants and wish to go semi-commercial remember that the Federal government in Australia brought in new tax laws in 2001, especially to help pensioners by expanding the tax-free threshold from approx. $6000 to $20,000 tax free with no GST chargeable until your turnover reaches $50,000, but you must pay GST on your pots and fertilisers etc. Ask you local accountant to verify and enlarge on these facts or any subsequent changes.
We trust that you will now better understand the PBR rules but should you have any queries you may contact the PBR office in Canberra on (02) 6272 4228, or see their web-site at www.affa.gov.au/pbr. Or write to them at Plant Breeder’s Rights, Agriculture Fisheries and Forestry – Australia, GPO Box 858, Canberra ACT 2601.
Recognition and sincere thanks must go to the Senior Officer at PBR Australia for the help in editing this article.
Agwest Plant scientists advise that their facilities are available for joint venture plant breeding projects with export potential. We would be happy to provide details on request.
Yours in the interest of happy gardening
Roger Broinowski
Geranium Cottage WA
