The case of the pirated blueberries: the value of registration as an anchor for protecting Plant Breeder’s Rights

Cultivators of new plant varieties can obtain exclusive rights to use and commercialise the plants they have developed and also prevent others from growing or selling them without permission. Copying can reduce the financial value that new plant varieties generate, so it is important to protect them against imitation; especially given the extensive resources that are generally required to create new varieties of plants.

Plant Breeders’ Rights are now even more valuable following changes to the law that occurred in February 2019. Previously, courts could only award damages for the actual loss suffered by the rights holder as a result of the copying. Under that system, few cases proceeded to the Federal Court due to the expense involved and the limited compensation available. The recent changes allow the courts to consider other factors in the calculation of damages, including the benefits the infringer received and the need to discourage future infringement.

The case of Mountain Blue Orchards v Chellew illustrates the impact of these changes. In that case, which is one of the first to occur under the new legislation, the court awarded $290,000.00 to a business whose blueberries were pirated. This figure included compensatory damages, additional damages, interest and litigation costs. This case demonstrates new opportunities for the enforcement of Plant Breeders’ Rights for registered owners.

To be enforced, plant breeders’ rights must be registered. At Sladen Legal, we can assist you with the registration, licensing and enforcement process.

If you wish to discuss plant breeders’ rights, please contact one of our experts.

Source: Mountain Blue Orchards Pty Ltd ACN 068 706 650 v Jason Richard Chellew & Anor (unreported)

For further information or advice please contact:

Michelle Dowdle
Special Counsel
T +61 3 9611 0114| M +61 408 674 256
E: mdowdle@sladen.com.au

Laura Bentley
Lawyer
T +61 3 9611 0120
E: lbentley@sladen.com.au

This update was prepared with the assistance of Zoe Kerwin, Intern.