Sanderson explores
the notion that plant breeder’s rights are out-of-date and unnecessary. To do so, this article adopts both descriptive and empirical approaches to examining a number of issues including: the nature of, and investment in, Australian plant breeding; biopiracy and enforcement; legal disputes and processes; and the use of the Australian plant breeder’s rights system. This review shows that the Australian plant breeder’s rights scheme is well used, has been progressively amended and extended, and is just one element in a suite of measures geared to stimulate plant-related innovation. As a consequence, future research needs to take into account the heterogeneous character of plant breeding and complementary government initiatives, identify the many reasons why the plant breeder’s rights scheme is seen as viable (or why not) and consider the interrelationships between these elements.SSRN is misbehaving today, so the link points to Sanderson's 'Essential Derivation, Law and the Limits of Science' from (2006) 24(1) Law in Context 34-53, concerned with the concept of 'essential derivation', ie
where the breeder of one variety – the 'initial variety' – claims that another breeder has developed a second variety – the 'putative essentially derived variety' – that is virtually the same as the initial variety. Clarity is necessary to ensure the effectiveness of essential derivation as a legal concept and, more broadly, to enable the plant breeders’ rights scheme to remain relevant.Sanderson comments that
In examining the concept of essential derivation, this article first looks at the general trends in plant breeding techniques. It then considers the concept of ‘essential derivation’ in light of the breeder’s exemption, the low threshold of distinctiveness and the limited infringement provisions in plant breeders’ rights schemes. This is followed by a discussion of the scientific (quantitative) approach to determining whether a variety is essentially derived and outlines the limits of such an approach. The article argues that the judiciary and legislature have imported notions of quality into the assessment of essential derivation. This has a number of advantages, including the ability to meet the needs of developments in plant breeding techniques and providing plant breeders with greater certainty in relation to whether new varieties are essentially derived.
