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Ownership and Objectivity: Judging Varieties for Plant Breeder’s Rights in Australia


Hamish Macdonald

To receive intellectual property protection under the International Convention for the Protection of New Varieties of Plants, new plant varieties must pass a Distinctness, Uniformity and Stability (‘DUS’) trial proving that they are distinct from existing varieties, uniform in their relevant characteristics, and stable across generations. This article examines how this scientific-legal judgement process occurs in Australia, contrasting its relatively decentralised approach with the centralised assessment systems used in most European countries. I argue that the pursuit of objective judgement is the central tenet of the plant breeder’s rights systems, and that calls to increase objectivity with technological changes can obscure embedded value judgement and power relations. The DUS criteria serve to reinforce this objectivity, and to discipline mutable and heterogenous plant life into a form which approximates a consistent and identifiable object – a necessity for the operation of intellectual property law, despite consequences for agricultural genetic diversity and resilience.

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2024 47(1) UNSWLJ 247: