Who judges plants? Scientific‐legal judgement of varieties for plant breeder's rights

• Published date: 01 November 2023
• Author: Hamish MacDonald
• Date: 01 November 2023
• DOI: http://doi.org/10.1111/jwip.12276

Received: 30 August 2022

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Accepted: 25 March 2023

DOI: 10.1111/jwip.12276

ORIGINAL ARTICLE

Who judges plants? Scientific‐legal judgement

of varieties for plant breeder's rights

Hamish MacDonald

1,2

1

School of Law, University of Queensland,

Brisbane, Queensland, Australia

2

ARC Centre of Excellence for Plant Success

in Nature and Agriculture, Australia

Correspondence

Hamish MacDonald, School of Law,

University of Queensland, Brisbane QLD

4072. ARC Centre of Excellence for Plant

Success in Nature and Agriculture, Australia.

Email: h.macdonald1@uq.edu.au

Funding information

Australian Research Council

Abstract

An internationally standardised system of intellectual

property protection for new varieties of plants is outlined

by the Union for the Protection of New Varieties of Plants

Convention. Within this system, member States must

determine who will be responsible for assessing plant

varieties. Jurisdictions have adopted divergent approaches

to this question, with varying degrees and modes of

government involvement in the assessment process. Taking

Australia as a case study, this article explores a decen-

tralised system of expert judgement where individuals

accredited as Qualified Persons are authorised to judge

new plant varieties. Drawing on extensive interviews, this

article outlines Australia's Qualified Person system, includ-

ing the accreditation, training, and supervision of Qualified

Persons. I argue that the formal system of varietal

assessment is underlaid and buttressed by a multiplicity

of informal elements, including the tacit knowledge of

Qualified Persons, audit processes, apprenticeship‐like

learning practices and interpersonal relationships of trust

between Qualified Persons and government officials.

KEYWORDS

DUS, empirical, judgement, plant breeder's rights, plant variety

rights, UPOV

J World Intellect Prop. 2023;26:357–380. wileyonlinelibrary.com/journal/jwip

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357

This is an open access article under the terms of the Creative Commons Attribution‐NonCommercial License, which permits use,

distribution and reproduction in any medium, provided the original work is properly cited and is not used for commercial purposes.

© 2023 The Authors. The Journal of World Intellectual Property published by John Wiley & Sons Ltd.

1|INTRODUCTION

It takes a lot of work to transform a plant variety into private property. Through the complicated bureaucratic

alchemy of domestic and international law, new plant varieties are converted into objects of intellectual property

(IP) which can be circulated, identified, and enforced throughout countries all over the world. To achieve this, it is

not just plants which are standardised, classified, and documented. The people responsible for assessing and

abstracting them are simultaneously configured as reliable and consistent judges within systems of plant breeder's

rights (PBR). To this end, member countries must decide: who should be responsible for judging plant varieties, and

how should their assessments be legitimised?

The International Union for the Protection of New Varieties of Plants (UPOV) administers an internationally

harmonised legal regime for granting IP protection to new plant varieties, based on the UPOV Convention.

1

While

UPOV provides detailed criteria and guidance for how plants should be assessed, it leaves it to individual member

States to determine who is responsible for assessing plants, and how they should be selected, trained, and

supervised. As a result, a multiplicity of national systems for judging plant varieties have arisen. These range from

completely centralised government‐run testing centres to systems where testing is done entirely by plant breeders

themselves.

2

This article presents a detailed analysis of a partially decentralised implementation of the UPOV

Convention. As the Australian system has been promoted by UPOV as an exemplar for decentralised assessment

models,

3

it presents an ideal case study for analysis.

Judgement of plants within the Australian PBR system is carried out by two groups of people: IP Australia

officials and accredited Qualified Persons. IP Australia's Plant Breeder's Right Office, a branch of the Australian

Federal Government, is responsible for administering PBR. This assessment is done with the help of Qualified

Persons—private individuals who have been trained and accredited to judge and measure new plant varieties.

Interestingly, most Qualified Persons are themselves active plant breeders, and are frequently responsible for

assessing their own plant varieties.

4

While I focus on the Australian system in this article, I contrast this at times

with the more centralised examination systems employed in Francefin, Germany, the Netherlands, and the United

Kingdom.

The assessment of plant varieties has practical as well as theoretical ramifications. What is at stake is what

kinds of varieties are eligible to receive IP rights, and consequently what kinds of varieties breeders are

systematically incentivised to develop. This is particularly crucial considering the intertwined challenges presented

by anthropogenic climate change, biodiversity loss, emerging pests and diseases, and population. As PBR regimes

are designed to promote plant breeding, it is important to understand how these systems operate in practice.

My key arguments are as follows. Formal, standardised processes are used within the PBR system is pursuit of

objective and consistent judgement, which is a guiding principle for both law and science.

5

These formal processes

include the use of standardised criteria to assess plant varieties, the accreditation and training of experts to conduct

judgement, and the audit‐like supervision of assessors by government officials. Examination of these formal

processes reveals that each is buttressed by a multitude of informal, unrecorded elements. Assessment in practice

relies heavily upon tacit knowledge, which inherently depends on the kinds of familiarity and experience which are

largely irreducible to language, and which therefore resist codification. The accreditation and training of Qualified

Persons similarly depends on informal apprenticeship‐like relations between experts, while supervision processes

are mediated by interpersonal trust between examiners and overseers. My overarching point is that it is not

possible to accurately understand the operation legal regimes without attending to the informal processes which

make them possible.

To investigate the inner workings of the PBR system, my analysis employs a variety of research methodologies

and sources. Australian and international law is explored doctrinally and archivally through analysis of legislation,

case law, regulations, and supporting documentation. Law as it exists ‘on the books’, however, only provides part of

the story: key details such as enforcement, material practices, and pragmatic concerns can only be discovered

through empirical research and observation.

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MACDONALD